CWPOA/1514/2019 on 29 December 2023

1. CWPOA No.1514 of 2019 Narvir Kumar

.....Petitioner

Versus

State of H.P. and others

.....Respondents -------------------------------------------------------------------------------------

2. CWPOA No.2176 of 2019 Narvir Kumar

.....Petitioner

Versus

State of H.P. and others

.....Respondents -------------------------------------------------------------------------------------

Coram

Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 ------------------------------------------------------------------------------------- For the Petitioner(s): Mr. Narender Sharma, Advocate, in

both the matters.

For the Respondents: Mr. Pranay Pratap Singh, Additional Advocate General with Mr. Sidharth Jalta, Deputy Advocate General, for respondents No.1 and 2-State in both the matters. ------------------------------------------------------------------------------------- Jyotsna Rewal Dua, Judge

Petitioner in both these petitions is seeking the relief of quashing and setting aside the remarks/entries 1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

made in his Annual Confidential Reports (ACRs) for the years 2008-09 and 2009-10.

CWPOA No.1514 of 2019 is in respect of the remarks/entries and subsequent orders passed by the respondents on the representation of the petitioner preferred against the remarks/entries in his ACR for the year 2009-10. The final entry in petitioner’s ACR for the year 2009-10 has been treated as ‘Adverse’ and inter-alia on that basis, he was denied promotion to the post of Superintendent Grade-II in the meeting of the Departmental Promotion Committee (DPC) convened on 27.04.2011.

CWPOA No.2176 of 2019 pertains to ACR of the petitioner for the year 2008-09. Here again the final entry in the ACR of the petitioner has been taken as ‘Adverse’. Petitioner’s representation against the entry in this ACR was rejected on 15.09.2009. Further appeal filed by the petitioner was dismissed by the competent authority on 29.10.2010.

2. In view of petitioner’s getting adverse entries in his ACRs for the years 2008-09 (subject matter of CWPOA No.2176 of 2019) and 2009-10 (subject matter of CWPOA No.1514 of 2019), the petitioner was declared ‘Unfit’ by the

DPC for promotion to the post of Superintendent Grade-II on 27.04.2011.

3. The petitioner has instituted these petitions on 29.06.2013 (CWPOA No.1514 of 2019) and 18.04.2013 (CWPOA No.2176 of 2019), respectively. The basic prayer in both the petitions is for quashing and setting aside the remarks/ entries contained in the two ACRs in question and thereafter for direction to the respondents to consider his case for promotion to the post of Superintendent Grade-II w.e.f. 27.04.2011.

4. The respondents have taken a preliminary objection of delay and laches in the institution of the writ petitions. I am inclined to accept this contention of the respondents. The ACRs in question pertain to the years 2008-09 and 2009-10. It is not the case of the petitioner that he was not aware of the ACRs or the orders passed by the authorities on his representations against the remarks/ entries in the said ACRs. Not only that, the respondents had convened the meeting of Departmental Promotion Committee for promotion to the post of Superintendent Grade-II on 27.04.2011. The DPC had taken into consideration the ACRs for the years 2005-06 to 2009-10. In view of the adverse entries recorded in the above two

ACRs of the petitioner, he was declared ‘Unfit’ for promotion to the post in question. The petitioner assailed the action of the respondents only in the year 2013. Learned counsel for the petitioner could not point out any reason, whatsoever, for the delay in instituting these writ petitions. Those who got promotions on the basis of recommendation of the DPC would also be affected by consideration of petitioner’s case on merits at this stage. While considering effect of delay in taking timely recourse to legal remedies against ACR entries, Hon’ble Apex Court in (2018) 5 SCC 798 (Union of India and others Versus Chaman Rana), inter-alia, observed that “Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt be considered, the cause of action based thereon accrued on 12-5-2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third-party rights accrue in the meantime to

those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the Government that would follow by such orders of promotion.” The delay and laches will certainly come in the way for considering the case of the petitioner on merits.

For the foregoing reasons, the writ petitions are dismissed alongwith pending miscellaneous application(s), if any.

Jyotsna Rewal Dua December 29, 2023

Judge Mukesh