DR. DHIRENDRA SINGH GARBYAL S/O LATE SRI TEJ SINGH GARBYAL, SERVING AS IN-CHARGE CHIEF MEDICAL OFFICER Vs. STATE OF UTTARAKHAND THROUGH SECRETARY, DEPARTMENT OF MEDICAL AND HEALTH, GOVERNMENT OF UTTARAKHAND AND

JUDGEMENT

(1.) ON 23rd March 2010, promotions were accorded to Joint Director Grade. Petitioner was also eligible to be promoted to Joint Director Grade. Petitioner came within the zone of consideration. While he was not promoted, 22 persons junior to him were promoted. Petitioner then sought information under the Right to Information Act and thereupon came to learn that during several reporting years, which were to be taken into account, remarks given by the Reporting Officer were down graded by the Reviewing Authority or by the Accepting Authority and those were considered by the Departmental Promotion Committee. He, accordingly, challenged in the present writ petition consideration of the down graded remarks of the Reviewing /Accepting Authority and not consideration of the remarks given by the Reporting Authority on the ground that down graded remarks given by the Reviewing/Accepting Authority did not become final, as no reason in support thereof was given, nor the Petitioner was informed of such down gradation.

(2.) ON the last occasion, we were under the misunderstanding that the Departmental Promotion Committee considered the remarks given by the Reporting Authority and did not take note of the down graded remarks given by the Reviewing /Accepting Authority. We, however, called for the records considered by the Departmental Promotion Committee. Those have been produced. There from it appears that the remarks given by the Accepting Authority were considered and not of the Reporting Authority or of the Reviewing Authority. In the event, remarks of the Reporting Authority had been taken into account, Petitioner would have scored 84 marks out of 100 marks during the reporting years 1999 -2000 to 2008 -2009, as was considered by the Departmental Promotion Committee. In the event remarks of the Reviewing Authority had been taken note of; Petitioner would have got 61 marks. However, since the remarks given by the Accepting Authority were considered, Petitioner obtained 57 marks out of 100 marks. The fact remains that by Government Order dated 5th July 2005, the government had indicated that the Reviewing Authority as well as the Accepting Authority must give reasons, when they either degraded or upgraded the remarks given by the Reporting Authority. Therefore, at least, in respect of down gradation of the remarks for the years 2005 -2006 to 2008 -2009, it was a requirement on the part of the Reviewing Authority and the Accepting Authority to give reasons when they down graded remarks given by the Reporting Authority. Admittedly, that has not been done. Furthermore, the down graded remarks right from 2001 -2002 to 2007 -2008 were not communicated to the Petitioner. When outstanding remark of the Reporting Authority for the year 2001 -2002 was down graded to fair and, accordingly entitlement of the Petitioner to receive 10 marks was reduced to zero, civil right of the Petitioner was affected and, accordingly, it was incumbent upon the Respondents to inform the Petitioner in that regard. It is now well settled that if anything is done affecting civil right of an employee, the employee must be informed in that regard. It is also well settled that in the matter of down gradation of a remark given by the Reporting Authority, if the prospect of a government employee for being promoted is interfered with, such down gradation must also be reported to the employee concerned in order to give an opportunity to contest the same. That having not been done in the instant case, while the Petitioner was entitled to 84 marks on the basis of the remarks given by the Reporting Authority, the Departmental Promotion Committee found that the Petitioner is entitled to only 57 marks, since the remarks given by the Reporting Authority have been down graded either by the Reviewing Authority or by the Accepting Authority. In consequence thereof 22 juniors to the Petitioner have been promoted refusing promotion to the Petitioner. Squarely, thus, civil right of the Petitioner was affected without giving him even a notice that the things done might affect his such right.