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Rajasthan High Court · body

2005 DIGILAW 2602 (RAJ)

Chander Lal Verma v. State of Rajasthan

2005-09-28

SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–The petitioner in the instant writ petition prayed for expunging the remarks in his APAR for the year 2000-2001 and for quashing the order rejecting the representation against the said APAR. (2). The facts in brief are that the petitioner was posted as Executive Engineer, in PWD Division Sikar vide order dated January 27, 2001. The petitioner joined the said post on January 30, 2001. Prior to joining of the petitioner proposals were prepared for connecting villages to roads under the Pradhan Mantri Gramin Sadak Yojna as per the Notification of the Secretary PWD, Jaipur dated April 20, 2000. In the month of December package formation was finalised by the earlier Executive Engineer. The proposals were approved by the Ministry of Rural Development Government of India vide letter dated December 23, 2000. The estimates prepared were technically approved by the competent authority i.e. Additional Chief Engineer on January 22, 2001. After issue of work order and commencing of work by the contractor, when the petitioner came to know that the village for which the work order was issued has already been connected to road, he stopped the work and informed the higher authorities vide his letter dated April 16, 2001. The petitioner given out that he has been transferred from Sikar Division on August 2, 2001 and till that date no payment was made to the contractor. The respondent called the explanation of the petitioner vide letter dated July 5, 2001 and further asked to appear before them on July 11, 2001. The petitioner submitted reply to the authorities mentioning therein that prior to his joining in PWD Division Sikar, the work under the Pradhan Mantri Gramin Sadak Yojna had already been sanctioned by the earlier officers. The estimates had already been submitted and technical approval was also granted by the Chief Engineer. He has not committed any irregularity in conducting work and as soon as mistake came to his knowledge he immediately stopped the work and informed the higher authorities. The Additional Chief Engineer vide his letter dated December 12, 2002 after satisfying with the reply of the petitioner recommended for dropping the matter. The Chief Engineer PWD vide his letter dated January 29, 2003 also recommended for dropping the matter against the petitioner. The Additional Chief Engineer vide his letter dated December 12, 2002 after satisfying with the reply of the petitioner recommended for dropping the matter. The Chief Engineer PWD vide his letter dated January 29, 2003 also recommended for dropping the matter against the petitioner. Despite this the petitioner was communicated adverse entry ``he got amount spent on PMGSY work, despite it being not permissible due to double connectivity in his APAR for the period 2000-2001 vide letter dated October 17, 2002. The petitioner submitted representation to the higher authorities, which was rejected vide communication dated Feb. 10, 2004. (3). The respondents submitted reply to the writ petition taking objection that the petitioner had not availed the alternative remedy of filing appeal before the Rajasthan Civil Services Appellate Tribunal. The joining of the petitioner as Executive Engineer Sikar Division on January 30, 2001 was admitted. The respondents also admitted preparation of estimate and inviting NITS, but the work order was placed by the petitioner himself without making any inspection of the road in question and thus he has failed to discharge his duties as per Government instructions. The respondents submitted that it was well within his purview to first inspect the road in question and then place work order but he did not do so and placed order in casual manner. The failure of the petitioner in discharge of his duties is apparent and he cannot escape from his responsibilities. The petitioner placed the work order on March 3, 2001 and whereupon the contractor started work which was well within the charge of the petitioner. The respondents submitted that had the petitioner been vigilant to his duties and responsibilities no work order would have been placed and the State Exchequer would not have been put to unnecessary burden of payment to the contractor. The respondents averred in the reply that under Rule 12(a) of the Instructions relating to Drawal and Submissions of Annual Performance Appraisal Reports on Government Servants, empowers the Accepting Authority to make its comments for the facts known to him even if there was no adverse entry by the Reporting Officer. The Accepting Authority thus empowered to assess the APARs of an officer for whole year irrespective of the fact that the concerned officer worked under different offices during the year. The Accepting Authority thus empowered to assess the APARs of an officer for whole year irrespective of the fact that the concerned officer worked under different offices during the year. The respondents denied the averments of the petitioner that the remarks with respect to the period 31.1.2001 to 31.3.2001 have been wrongly entered and are contrary to the provisions of the instructions. (4). The petitioner filed rejoinder to the reply submitted by the respondents reiterating his earlier submissions made in the writ petition. The petitioner submitted that the Civil Services Appellate Tribunal has no power to entertain any appeal against the order which has been passed only for making adverse entry in the service record. It was averred that technical sanction was granted on January 22, 2001 by the Additional Chief Engineer and on the basis of such technical sanction the then Chief Engineer invited the tender. The petitioner joined the service at Sikar division on January 31, 2001 and prior to that all the procedure was completed by the earlier officers. The petitioner has no remedy except to issue work order if it was already technically sanctioned by the Additional chief Engineer and the tender of which finalised by the Chief Engineer. The issuance of work order was merely an endorsement of the technical approval and finalization of the tender. The petitioner cannot be held liable for any irregularity if he was not at all party in technical sanction, approval, inviting the tender and finalizing the tenders in favour of the contractor. The petitioner points out that no action was taken against the then Executive Engineer, Additional Chief Engineer, Superintending Engineer and the Chief Engineer, who participated in technical sanction, approval finalization of technical sanction, inviting the tenders and finalization of tender. None of them have been issued any sort of charge sheet and no adverse entries have been made in their service record. The petitioner in these circumstances averred that it is highly arbitrary, illegal and discriminatory to communicate and enter the adverse entry in the service record of the petitioner who was only an endorsing authority. No financial loss has been caused to the Govt. in issuing the work order by the petitioner as this fact has been admitted by the Chief Engineer in his communication dated August 5, 2003 to the Secretary to the Government. No financial loss has been caused to the Govt. in issuing the work order by the petitioner as this fact has been admitted by the Chief Engineer in his communication dated August 5, 2003 to the Secretary to the Government. The petitioner in the rejoinder further submitted that alleged financial loss caused to the Govt. with respect to double connectivity of five villages a question was raised by the MLA Hindauli. This question was answered by the Govt. before the Assembly that no loss has been caused to the State Government and as such no disciplinary action was taken up against any of the employee/officer. In relation to the entry in the APAR the petitioner submitted that the action of the respondents is not only arbitrary, illegal and without jurisdiction but also discriminatory qua the officers who were involved in the process of technical sanction, approval, inviting tenders and finalization of the tenders because they have not been charge-sheeted and no adverse entries have been made in their service record. The learned counsel for the petitioner placed reliance on Sultan Singh vs. State of Rajasthan & Others (1996 (1) WLC 460)= (RLW 2000(3) Raj. 1500), Sultan Singh vs. State of Rajasthan and Others (2000 (3) WLC 242) and Dr. Gyan Chand Jain vs. State of Raj. and Another 1993 (1) WLC 526. (5). I have pondered over the rival submissions. (6). It is evident from the material on record that the estimates prepared were technically approved by the competent authority i.e., the Additional Chief Engineer and after issue of work order and commencing of work by the contractor when the petitioner came to know that the village for which the work order was issued has already been connected to road, he stopped the work and informed the higher authorities. The Additional Chief Engineer and Chief Engineer after satisfying with the explanation of the petitioner recommended that the matter against the petitioner be dropped. Despite this fact the petitioner was communicated with the adverse entry ``he got amount spent on PMGSY work, despite it being not permissible due to double connectivity in the APAR for the period 2000-2001. The representation submitted by the petitioner was also rejected. Despite this fact the petitioner was communicated with the adverse entry ``he got amount spent on PMGSY work, despite it being not permissible due to double connectivity in the APAR for the period 2000-2001. The representation submitted by the petitioner was also rejected. It also appears that the Government of Rajasthan in regard to PMGSY work made a statement in the Assembly that because loss was not caused to the Government therefore no disciplinary action was taken against any of the employee/officer. Not only the petitioner but other officers were involved in PMGSY work but no adverse entries were made in their APARs. Since no adverse entry was made against similarly situated officers I find that the petitioner has clearly been subjected to discriminatory treatment. This act of the State Government leads to an inference that it had acted arbitrarily and unjustly in making adverse remarks in the Annual Performance Appraisal Report of the petitioner. (7). Their Lordships of the Supreme Court in Union of India vs. E.S. Lambudri (1991) (3) SCC 38) indicated that although it is not necessary for the competent authority to indicate reasons for rejecting the representation of a government servant against the adverse remarks, but it has no licence to act arbitrarily. The competent authority must act in a fair and just manner. It is required to consider the questions raised by the Government servant and examine in the light of the comments made by the officer awarding adverse entries. (8). For these reasons I find merit in the writ petition and it accordingly stands allowed. The adverse remarks made in the APAR of the petitioner for the year 2000-2001 are declared arbitrary and hereby expunged. The petitioner shall be entitled to all consequential benefits. No costs.