- (1.)This petition under Article 226 of the Constitution has been filed by one Shri Sham Sunder Mongia challenging the order dated March 1, 1985 passed by the Haryana Housing Board, Chandigarh (for short, 'the Board') by which respondent No. 3 who was junior to the petitioner as an Assistant Engineer was promoted to the rank of Executive Engineer on the basis of his better record. When this petition came up for hearing before J.L. Gupta, J. the question that arose before him was whether an 'average' report could be regarded as a 'good' report while considering cases for promotion to a higher post. The petitioner who contended that he could not be denied promotion on the basis of 'average' report as against a 'good' report of respondent No. 3, placed reliance on a Division Bench judgment in Raj Kumar Sethi v. State of Haryana, 1991 1 SCT 24, CWP No. 2616 of 1990 decided on May 7, 1990. In this case, the learned Judges quashed the instructions of the State Government which provided that an employee should have obtained 50 per cent good reports in the preceding 10 years to become eligible for promotion as arbitrary. While quashing the instructions the learned Judges placed reliance on another Division Bench judgment of this Court in K.K. Vaid v. State of Haryana, 1990 1 SLR 1 which was a case of premature retirement and it has been held therein that a person who had an 'average' report could not be dubbed as 'dead wood' and that an average report did not furnish a good ground for premature retirement. The learned Single Judge had some reservations in regard to the observations made in Raj Kumar Sethi's case and referred the matter for consideration by a larger Bench. This is how the matter his been placed before us for disposal.
(2.)Counsel for the parties are agreed that the question of law referred for our consideration already stands answered against the petitioner and in favour of the respondents by a Division Bench judgment of this Court in Yogesh Kumar Sethi v. State of Haryana,1993 2 SCT 625, CWP No. 2734 of 1991 decided on January 19, 1993 and that the case of the petitioner will have to be reconsidered by the Department for promotion in the light of the observations made by the Division Bench in Yogesh Kumar Sethi's case.
(3.)Mr. Patwalia, learned counsel for the petitioner urged before us that before the Board reconsiders the case of the petitioner for promotion from the date when his juniors were promoted, the Board be directed to dispose of the representations pending before it and filed by the petitioner against the 'average' reports earned by him. It is not disputed that for the period 27.7.1980 to 31.3.1981 the petitioner had earned a 'below average' report with some adverse comments from the reporting authority as a result of which an enquiry was held against him. By an order dated September 18, 1981 the petitioner was punished and his one grade increment due on 1.4.1982 was stopped with cumulative effect. It was also ordered that he would not be paid any thing beyond what had been paid to him during the period of suspension. An appeal was preferred against this order which was partially allowed by the Chairman of the Board as per order dated December 26, 1983 a copy of which was endorsed to the petitioner on August 1, 1984. The punishment of stoppage of one grade increment with cumulative effect was set aside. It was also held that there will be no change regarding the payment of subsistence allowance for the suspension period. Against this order, the petitioner filed a further appeal to the Board which was allowed and it was decided that the suspension period of the petitioner be regularised and he be paid the balance amount due to him for the suspension period. In the meantime, the petitioner had represented against the 'below average' report given to him for the period July 27, 1980 to March 31, 1981 and this representation was rejected by the competent authority on June 21, 1984. On receipt of the order by which the punishment imposed had been set aside. (Annexure P-1 with the writ petition) the petitioner made another representation against the report for the period 27.7.1980 to 31.3.1981 even though the instructions issued by the State Government and adopted by the Board provide that only one representation was maintainable against an adverse confidential report. This representation which is Annexure P-3 with the writ petition is stated to be pending with the Board.