A civil judge challenged his supersession for promotion and non-communication of adverse ACR entries after a four-year delay. The court held that the cause of action was stale due to intervening promotions of juniors and dismisses the petition to avoid upsetting settled third-party rights.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 9175 of 2012
Reserved on: 10.10.2023
Date of Decision: 02.01.2024
Aman Sood .....Petitioner.
Versus High Court of Himachal Pradesh and others …..Respondents.
Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1 Yes
| For the appellant |
: Mr. Sunil Mohan Goel, Advocate. |
|---|---|
| For the respondents |
: Mr. Rajiv Jiwan, Senior Advocate with Mr. Vikas Rathore, Advocate, for respondent No.1. |
| Mr. Vinay Kuthiala, Senior Advocate with Mr. Devi Singh Verma, Advocate, for respondents No. 2 to 5, 7 and 8. |
|
| None for respondent No.9 though served for 28.09.2021. |
Bipin Chander Negi, Judge
The petitioner was appointed as a Civil Judge (Jr. Div.) on 10.06.1999. The petitioner was confirmed on the aforesaid post on 10.06.2002. Service of the petitioner is governed by the Himachal Pradesh Judicial Service Rules, 2004. The next promotional post for the petitioner is that of a Civil Judge (Sr. Div.). For being considered for promotion to the post of Civil Judge (Senior Division) minimum five years experience in the
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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cadre of Junior Civil Judge is required. Promotion to the post of Civil Judge (Senior Division) is made on the basis of merit-cumseniority (Selection post). In the aforesaid backdrop, the petitioner became eligible for promotion on 10.06.2004.
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Notification dated 19th July, 2006. The same was placed before the Hon'ble Full Court. The Hon'ble Full Court in its meeting held on 15.12.2006 considered and rejected the representation of the petitioner, being devoid on merit and a communication in this respect was made to the petitioner vide letter dated 21st /22nd December, 2006 i.e. Annexure P-4.
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hardship being caused to the petitioner on account of the fact that his juniors in the gradation list of 01.01.2007 were drawing a higher salary. Thereafter, on 18.09.2008, the present petitioner submitted yet another representation seeking a review of his annual confidential report for the year 2003/2004 which as has already been stated supra had been communicated to the present petitioner vide letter dated 07.10.2004. It is here for the first time the petitioner raised a plea qua non supply of ACRs' other than the aforesaid.
1. That this Hon'ble Court may be pleased to issue a writ of Certioreri quashing communication dated 21/22 December, 2006 ( Annexure P-4) ( Page 30) vide which the petitioner was informed that representation of the petitioner dated 13.08.2006 was considered and rejected.
2. That this Hon'ble Court may be pleased to issue a writ of directing the respondent to
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promote the petitioner to the post of Civil Judge(Junior Division) on adhoc basis, w.e.f. 19th July, 2006 with all consequential benefits i.e. the date when six Civil Judges(Junior Division) were ordered to be promoted as Civil Judge (Senior Division) on adhoc basis including officers junior to the petitioner and thereafter promote the petitioner as such on regular basis w.e.f. October, 2009 i.e. the date when officers junior to the petitioner were promoted as such on regular basis vide Notification dated 02.12.2009 with all consequential benefits.”
Conspicuous by absence was a challenge/mention to
the promotions of Sh. Hans Raj, Barinder Thakur who were admittedly juniors to the petitioner and had superceeded the petitioner on the 2nd occasion.
“ That the respondent No.1 may kindly be directed to consider the case of the petitioner for promotion to the post of Additional District & Sessions Judge from the date respondents No. 2 to 7 were promoted with all consequential benefits and further petitioner may be placed above respondents No.2 to 7 in the seniority list.”
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The relief now being sought would otherwise have been covered by the doctrines of lis pendence.
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Union of India (2009) 16 SCC 146, Sukhdev Singh v. Union of India, (2013) 9 SCC 566 .
According to the counsel for the petitioner since no third party rights have crystallized therefore corrective action needs to be taken. In this respect he has placed reliance on LPA No. 74 of 2017, titled as Rajinder Kumar vs. High Court of H.P. & ors., 2022 (12) SCC 579, titled as Ajay Kumar Srivastava vs. Arvind Rai & Ors. Alongwith others connected matters.
Besides the aforesaid it has been contended by the petitioner that though he had been superseded on two occasions in the year 2006, 2007 and representation qua the first supersession stood rejected in December, 2006 even though he had filed the petition in September, 2012 the same did not suffer
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from any delay and laches as no third-party rights had accrued during the interregnum. He has placed reliance on 1974 (1) SCC 317 , titled as Ram Chandra Shankar Deodhar & ors vs. State of Maharashtra & ors. and AIR 2010 SC 706 , titled as Shiba Shankar Mahapatra & ors. vs. State of Orissa & others to canvass that 3-4 years is a reasonable period to challenge seniority. Hence, the same parameter should be applied in case of supersession of the petitioner.
He has further contended that not looking into a stale claim is a Rule of prudence based on sound and proper exercise of discretion. In this respect he has placed reliance on 1975 (3) SCC 459 , titled as Joginder Nath & Ors. vs. Union of India & Ors. and 1984 (4) SCC 329 , titled as G.P. Doval vs. Chief Secretary, Govt. of U.P . According to him, it is not just the length of delay but also the nature of acts done during the interval. In the case at hand, it is argued that his acquiescence will not matter as no third-party rights accrued during the interval. In this respect, reliance is placed on LPA No. 74 of 2017 , titled as Rajinder Kumar vs. High Court of H.P. & ors. a nd 2022 (2) SCC 301 , titled as Chairman State Bank of India & another vs. M.J. James .
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Lastly, it is contended that if the inception is bad then the subsequent acts must go. To buttress the said contention, reliance is placed on 2011 (14) SCC 770 , titled as State of Punjab vs. Devinder Pal Singh Bhullar & Ors. and 2000 (8) SCC 395 , titled as Badrinath vs. Govt. of T.N.
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According to the learned counsel appearing for the High Court, no challenge has been made by the petitioner to the orders, whereby he had been superceded and further the orders whereby the Officers so superceding the petitioner had been regularized.
According to learned counsel appearing on behalf of the High Court a perusal of entry No.6 in all ACRs relevant for the period, in question, which have been placed on record by the petitioner it is evident that the petitioner has been graded on account of low disposal of cases. The counsel for the private respondents have adopted the arguments made by the counsel representing the High Court.
SCC 363 before the High Court, the petitioners’ plea was that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. This
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argument was turned down by the High Court. The High Court to justify its view gave an illustration that if an employee legitimately had earned an ‘Outstanding’ report in a particular year which, in a succeeding one and without his knowledge, is reduced to the level of ‘Satisfactory’ without any communication to him, it would certainly be adverse and affect him at one or the other stage of his career.
‘8. As has been rightly submitted by the learned counsel for the appellants U.P. Jal Nigam case has no universal application. The judgment itself shows that it was
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intended to be meant only for the employees of U.P. Jal Nigam only.’
SCC 725 , the Supreme Court had an occasion to consider the
question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam and principles of natural justice exposited by the Apex Court from time to time concluded that every entry in the ACRs of
a public servant must be communicated to him within a reasonable period whether it is Poor, Fair, Average, Good or Very Good entry.
U.P. Jal Nigam v. Prabhat Chandra Jain and Union of India v.
Major Bahadur Singh referred (supra) the matter was heard by a Larger Bench reported as Sukhdev Singh v. Union of India, (2013) 9 SCC 566, wherein it was noticed that a three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146, followed by Dev Dutt had held that the entry of ‘Good’ should have been communicated as in the previous year the entry was ‘Very Good’. In such circumstances, it was held, non-communication of entries in the ACRs of a public servant
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whether he/she is in Civil, Judicial, Police or any other service (other than the Armed Forces), has civil consequences because it may affect his chances for promotion or getting other benefits. It was further held that the same should not be taken into consideration for being considered for promotion to the higher grade. Thereby over-ruling U.P. Jal Nigam case (supra).
Even otherwise, if the law declared in U.P. Jal Nigam had universal applicability even then in terms of the law laid down in U.P. Jal Nigam, the graded entry in the case at hand is of going a step down, like falling from ‘Good’ to ‘Average’ that may
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not ordinarily be an adverse entry, since both are a positive grading.
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representation was rejected on 21.12.2006/ 22.12.2006. The petitioner had approached the Court on 8.9.2012 and, therefore, he had approached the Court within a period of less than four years for redressal of his grievance.
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representation by the subsequent appointees, and her representation was accepted by the High Court, rectifying the mistake. In that case, it was admitted by the High Court that neither Tentative Seniority List was published nor objections were invited and Final Seniority List was never published at any point of time.
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Kumar’s case and, thus, plea, based on judgment in Rajinder Kumar’s case, raised on behalf of petitioner is misconceived.
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Supreme Court in (1975) 1 SCC 152, titled P.S. Sadasivaswamy vs. State of T.N ., (para-2).
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limitation/delay and laches despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which the petitioner has proceeded before filing the present petition. 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. Manifestly, the cause of action first arose to the petitioner on the date of initial supersession and again on the date when rejection of his representation was communicated to him. As has already been stated supra, in the start of 2007, the petitioner was yet again superseded. Belated interference is bound to have an adverse effect on those already promoted affecting their morale in service. Additionally, to promote the petitioner with retrospective effect, after a considerable time is bound to have serious administrative implications apart from financial burden that would follow by such orders of promotion. It is settled that a period of six months or at the utmost a year would be reasonable time to approach a Court against denial of promotion and it would be a sound and wise exercise of discretion not to entertain such claims by persons like the petitioner, who tried to unsettle the settled matters. Petitions like the present case
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only clog the work of Court impeding it in considering genuine grievances.
The present petition is accordingly dismissed, so also, the pending application, if any.
(Vivek Singh Thakur) Judge
3 issues framed by the court
Whether the non-communication of a downgraded',average'entry in an Annual Confidential Report to a judicial officer violates natural justice or attracts the principles of Dev Dutt v. Union of India.
Whether a delay of over four years in challenging supersession and seeking promotion after acquiring later promotions by juniors attracts the doctrine of laches and affects third-party rights.
Whether the High Court can interfere to regularize a petitioner's promotion with retrospective effect after a long delay and consequent accrual of settled rights in higher officials.
Colour shows how this judgement treated each authority
U.P. Jal Nigam v. Prabhat Chandra JainExplained¶19
U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 · Who else cites this
Union of India v. Major Bahadur SinghFollowed¶22
Union of India v. Major Bahadur Singh (2006) 1 SCC 368 · Who else cites this
Dev Dutt v. Union of IndiaRelied on¶15
Dev Dutt v. Union of India (2008) 8 SCC 725 · Who else cites this
Abhijit Ghosh Dastidar v. Union of IndiaFollowed¶14
Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146 · Who else cites this
Sukhdev Singh v. Union of IndiaDistinguished¶23
Sukhdev Singh v. Union of India, (2013) 9 SCC 566 · Who else cites this
Union of India vs. Chaman RanaDistinguished¶25
Union of India vs. Chaman Rana, (2018) 5 SCC 798 · Who else cites this
Rajinder Kumar vs. High Court of H.P.Distinguished¶27
Rajinder Kumar vs. High Court of H.P., 2022 (12) SCC 579 · Who else cites this
Ram Chandra Shankar Deodhar & ors vs. State of Maharashtra & ors.Distinguished¶47
(1974) 1 SCC 317, titled as Ram Chandra Shankar Deodhar & ors vs. State of Maharashtra & ors. · Who else cites this
State of Punjab vs. Devinder Pal Singh BhullarDistinguished¶48
State of Punjab vs. Devinder Pal Singh Bhullar & Ors., 2011 (14) SCC 770 · Who else cites this
P.S. Sadasivaswamy vs. State of T.N.Followed¶31
P.S. Sadasivaswamy vs. State of T.N., (1975) 1 SCC 152 · Who else cites this
1 provisions across 1 enactments
Aman Sood
High Court of Himachal Pradesh
Pune Ram
Hans Raj
Barinder Thakur
Bipin Chander Negi
Vivek Singh Thakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
