K.P. Bhandari, J. - (1.) The petitioner is serving as Assistant Fitter in the Haryana State Transport Department. He has come to this Court by means of the present writ petition with a grievance that although his juniors have been promoted, vide order dated 17.3.1987 (Annexure P-1), the petitioner has been denied the promotion. The petitioner claims that he has been denied the promotion arbitrarily and, therefore, his fundamental rights guaranteed by Articles 14 and 16 of the Constitution of India is violated. Respondents Nos.1 and 2 have filed written statement through Shri N.S. Tanwar, HCS, General Manager, Haryana Roadway, Faridabad. In paragraph 8 of the written statement the stand has been taken that the reports of the petitioner from 1977-78 to 1982-83 are average and the reports from 1983-84 to 1986-87 are good. It is admitted that the average reports were not conveyed to the petitioner. So, he was not given the right to represent against the same. It is contended that, in view of the then prevailing practice, it was not necessary to give opportunity of submitting representation in case of average report. In paragraph 6 of the written statement, the respondents have taken a stand that 70 percent reports of the petitioner during the last ten years were not good and, therefore, according to instructions Annexure R-1, the petitioner was not promoted. Mrs. Abha Rathore, counsel for the petitioner, has very strongly contended that the average reports cannot be treated adverse. The petitioner was not served the average reports. Therefore, he had no opportunity of submitting representation against the same. She placed reliance on the Single Bench judgment of this Court in Smt. Shanti Devi vs. The State of Haryana and others, 1989 (3) S.L.R. 284 for the proposition that the average report, which was not served and against which the employee concerned has no opportunity of submitting representation, cannot be treated as adverse. Recently, a Division Bench of this Court in Civil Writ Petition No. 15225 of 1989, decided on 24.1.1990 has laid down that average reports cannot be considered as adverse; they are to be treated as good. I am of the opinion that in view of the judgment of the Division Bench in Civil Writ Petition No. 15225 of 1989, there is great weight in the contention of the counsel for the petitioner.
(2.) Mr. S.V. Tathee, counsel for the State, submitted that at that time there were no - instructions which required that the average reports should be served on the Government servants concerned and, therefore, even though the average reports were not served, they have to be treated as average and, according to the instructions (Annexure R-1) of the Government, the petitioner was not promoted as 70 per cent reports during the last ten years were not good. The stand of the counsel for the State is not tenable in view of the Division Bench judgment in Civil Writ Petition No. 15225 of 1989. Further, I am of the view that, at that time when the reports were recorded, they were not treated as adverse and, therefore, by the new instructions the Government cannot treat those average reports as adverse. The Government, in exercise of their executive power, cannot retrospectively affect the rights of the Government servants in the matters of promotion, crossing of efficiency bar and disciplinary action. It is well known that Annual Confidential Reports are taken into core side ration while making promotions or allowing crossing of efficiency bar. If at the relevant time when the report was given, the same was classified as average and, as per those instructions the average reports were not considered bad, it is not permissible to the Government to treat such -average reports to be adverse, because the Government has no such power. Moreover, laying down such a criterion with retrospective effect will also be arbitrary, unreasonable and capricious and will involve contravention of the provisions of Articles 14 and 16 of the Constitution of India.
(3.) In view of the above discussion, I allow the writ petition and issue a writ of mandamus to the respondent-State to promote the petitioner with retrospective effect, i.e., from the date his juniors were promoted. The petitioner will stand promoted as Fitter on the basis of seniority and he will also be correctly shown in the seniority list of the promoted rank from the date he stands promoted.;