M.M.KUMAR, J. - (1.) This petition filed under Article 226 of the Constitution prays for issuance of direction to the respondents to promote the petitioner as Headmaster from the reserved quota of Scheduled Caste with effect from 1.1.1987 instead of 1.4.1989. It has been claimed that the petitioner has become eligible for promotion along with others on 1.1.1987. It has further been prayed that the order dated 25.2.2004 (P-11) passed in pursuance to the directions issued by this Court in C.W.P. No. 16544 of 2002, decided on 11.10.2002, be quashed by granting promotion to the petitioner as Headmaster with effect from 1.1.1987. The petitioner had challenged the order dated 25.2.2004 (P-11) by filing C.W.P. No. 12636 of 2004 (P-12), which was dismissed as withdrawn when the Division Bench had pointed out to the petitioner about the position in law. The aforementioned position is evident from reading of the concluding paras of the judgment of the Division Bench, dated 20.8.2004, which reads as under:- "The petitioner has averred that average entries recorded in his Annual confidential Reports for the years 1977-78, 1978-79 and 1979-80 could not have been taken into consideration because the same had not been conveyed to him and the respondents committed a grave illegality by refusing to promote him as Head Master w.e.f. 1.4.1987 on the ground that he did not have 70% good reports in the last 10 years. In support of this assertion, he has relied on the judgments of this Court in K.K. Vaid Versus State of Haryana, 1990(1) R.S.J. 193 and Raj Kumar Sethi Versus State of Haryana, 1990 (2) R.S.J. 337. At the hearing, we pointed out to Shri S.K. Sud learned counsel for the petitioner that the judgment in K.K. Vaid's case (supra) has been overruled by a Full Bench in Daya Nang Versus State of Haryana, 1995(1) S.L.R. 57. We also pointed out to him that the petitioner's candidature for promotion to the post of Head Master w.e.f. 1.4.1987 was considered alongwith other eligible candidates and he was superseded vide order dated 4.08.1988/16.12.1988 and that the said order was neither challenged nor the same appears to have been brought to the notice of the counsel, who had filed C.W.P. No. 16544 of 2002. Upon this, Shri Sud made a request that his client may be allowed to withdraw this petition. The request of the learned counsel is accepted and the writ petition is dismissed as withdrawn."
(2.) The petitioner was, however, allowed to file a fresh petition by an order of the Division Bench passed in C.M. No. 17816 of 2004 filed in C.W.P. No. 12636 of 2004 (P-13). As a consequence of the permission granted, the petitioner has filed the instant petition. After hearing learned counsel for the parties and perusal of the service record of the petitioner, it is not possible to accept the submission that the petitioner was entitled to promotion as Headmaster with effect from 1.4.1987. As per rules he did not have 70% Good record and, therefore, he was not promoted on 1.4.1987. His case was duly considered and he was passed over. His confidential record of the aforementioned years, as disclosed in the written statement is as under:- "1. 1976-77 Good 2. 1977-78 N.A.C 3. 1978-79 Below Average 4. 1979-80 Below Average 5. 1980-81 Very Good 6. 1981-82 Very Good 7. 1982-83 Very Good 8. 1983-84 Average 9. 1984-85 Remained Absent 10. 1985-86 Under Suspension"
(3.) It is also pertinent to mention that the petitioner was placed under suspension as he was caught red handed by the Sub Divisional Magistrate and Deputy Superintendent of Police of District Hisar on account of demanding bribe. The criminal case under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988, was registered against him. He remained in judicial custody and was convicted by the Special Court vide order dated 4.6.1991, however, he was later on acquitted by this Court and, therefore, the service record for the years 1984-85 and 1985-86 has been considered as having remained absent and under suspension. Therefore, we are inclined to accept the opinion expressed by respondent No. 2 in its order dated 25.2.2004 (P-11), which reads as under:- "After going through the service record of the petitioner it has been found that the promotion case of Shri Shadi Lal was considered earlier w.e.f. 1.4.87 alongwith other masters. Since service record of the petitioner was not upto the mark and accordingly he was ignored from promotions vide this office order No. 4/22- 88 E-1(4) dated 4.8.1988/16.12.1988. As per norms at least 70% record for last 10 years is required to be 'good' to promote an official. Whereas from 1976-77 to 1986-87, only 4 out of his 10 ACR's were of 'Good' or better category. Hence the claim of Shri Shadi Lal to promote him w.e.f. 1.4.1987 is not maintainable and liable to be rejected. However, on reconsideration the petitioner was found eligible to be promoted as Headmaster w.e.f. 1/4/1989 on the basis of his latest service record. Accordingly, he was promoted vide Govt. Order No. 8/643/2001-Edu. III(1) dated 30.08.2001 w.e.f. 1.4.1989 as Headmaster. Consequent upon this antedated promotion his seniority was fixed at Sr. No. 587(A)(i) in the joint seniority of Headmasters/Headmistresses as it stood on 1/4/1998 by the order No. 4/22-88 E-1(4) dated 13/8/2003. Consequent upon this re-fixation, his case was considered for promotion to the post of Principal w.e.f. 18/1/2002. By order No. 3/50-2003 Ad.II(2) dated 24/2/2004 he has been promoted as Principal w.e.f. 18/1/2002 and posted at GSSS Bass (Hisar).";