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2011 DIGILAW 130 (RAJ)

Kuldeep Kaur v. State of Rajasthan

2011-01-18

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this writ petition filed under Article 226 and 227 of the Constitution of India, the petitioner has made following prayers : "It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and : A. By an appropriate writ, order or direction, the order Annex P-4 dated 15.03.2003, P-6 dated 20.09.2003 and order dated 09.12.2003 Annex P-8 may kindly be quashed and set aside with all consequential benefits. B. Any other appropriate relief which this Hon'ble High Court deem fit and proper that may kindly also be given to the petitioner. Costs may be awarded to the petitioner." 2. As per facts of the case, the petitioner was substantively working on the post of Lecturer (Chemistry) at Government Girls (PG) College, Sriganganagar. On 15.3.2003, the petitioner received a communication whereby adverse entries in her APAR for the period 2000-2001 were communicated. In the communication, it is mentioned that her management ability and initiatives were unsatisfactory in the year 2000-2001. The petitioner was granted an opportunity to file representation against the said communication dated 15.3.2003 whereby adverse entries in the ACR were communicated to her. 3. The case of the petitioner is that although she filed a detailed representation mentioning all her grounds on 16.5.2005 vide Annexure P-5 but without considering the said grounds objectively, the representation filed by the petitioner was rejected vide printed communicated dated 20.09.2003. Annexure-P-6. Against the said adverse entries and rejection of petitioner's representation, an appeal was filed in the Rajasthan Civil Services Appellate Tribunal, Jaipur Circuit Bench, Jodhpur. The said appeal filed by the petitioner was dismissed vide order dated 21.8.2007 on the ground that in view of the judgment rendered by this Court in case of Tayab Ali v. State of Raj. & Ors., reported in 1988 (2) RLR 1 , there is no jurisdiction left with the Tribunal to decide the appeal filed against the ACRs communicated to the State employee. 4. In this writ petition, the petitioner is challenging validity of communication dated 15.3.2003 (Annexure-4), so also the rejection of petitioner's representation Annexure-P/6 dated 20.9.2003 and communication dated 09.12.2003 (Annexure-P/8). 5. 4. In this writ petition, the petitioner is challenging validity of communication dated 15.3.2003 (Annexure-4), so also the rejection of petitioner's representation Annexure-P/6 dated 20.9.2003 and communication dated 09.12.2003 (Annexure-P/8). 5. Learned counsel for the petitioner at the threshold submits that although as per verdict of Hon'ble Supreme Court reported in 1991 (3) SCC 38 , the representation against the adverse entries in the ACRs is not required to be decided while giving detail reasons but in the said judgment, it has been held that upon challenging the ACR in the Court, the administrative authorities while placing record before the Court are under obligation to satisfy the Court that decision taken on the file contains reasons and representation has been decided objectively. 6. Learned counsel for the petitioner while inviting attention of this Court towards the order dated 11.1 2010 passed by Coordinate Bench of this Court submits that Coordinate Bench of this Court directed the respondent - Department to made available the complete ACR Dossier of the petitioner for perusal of the Court. In pursuance of the said order, today the entire record has been placed before the court for perusal. 7. Learned counsel for the petitioner submits that as per knowledge of his client, the representation filed by the petitioner has not been considered objectively and on the basis of so called ACR, the service benefits available to the petitioner have been denied, therefore, this writ petition deserves to be allowed. 8. Learned Govt. Counsel appearing on behalf of the State while placing the record for perusal of the Court submits that the adverse entires against the petitioner were recorded after due consideration of the material available on record for the period commencing from 01.01.2001 to 30.06.2001. Further, it is submitted that the representation of the petitioner was considered and it is not found necessary to give detailed reasons in the order, therefore, while rejecting the representation the order Annexure-6 dated 20.9.2003 was communicated to the petitioner, in which there is no illegality. 9. I have considered the rival submissions made by both the parties. Further, it is submitted that the representation of the petitioner was considered and it is not found necessary to give detailed reasons in the order, therefore, while rejecting the representation the order Annexure-6 dated 20.9.2003 was communicated to the petitioner, in which there is no illegality. 9. I have considered the rival submissions made by both the parties. It is true that an opportunity to file representation against the adverse entries is required to be given by the administrative authorities and representation is required to be obtained against the adverse remarks communicated to the employee but at the time of rejection of the representation, if any filed by the employee, though it is not necessary to give reasons but as per verdict of Hon'ble Supreme Court given in case of Union of India v. E.G. Nambudiri, reported in 1991 (3) SCC 38 , the Hon'ble Supreme Court held that although speaking order is not necessary to be communicated to the employee but reasons must exist with the authority which can be shown to the Court at the time of judicial review. The relevant para 9 and 10 of the aforesaid judgment is as follows : "9. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in Item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. In the instant case adverse remarks as contained in Item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 "that nothing adverse has come to notice regarding your integrity" is not adverse to the respondent's work and conduct. The remarks are neutral in nature, and they do not adversely comment upon the respondent's work, conduct or character, though they are not commendatory in nature. As regards the remarks at serial No. 6, they are self-explanatory, which show that in spite of oral and written warnings the respondent did not improve. If the superior authority was not satisfied with the explanation of the respondent as contained in his representation, what reasons could be stated, except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detailed judgment or order giving details of the warnings of material on which he formed opinion. 10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries, the competent authority is not under any obligation to record reasons. But the competent authority has not licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In Governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action." 10. Similarly, the Hon'ble Supreme Court in case of P.K. Shastri v. State of M.R & Ors., reported in (1999) 7 SCC 329 has held in para 6 that decision for rejection of the representation must be taken objectively after careful consideration of all the material which are before the authority directing remarks being entered in the Crs. Para-6 of the aforesaid judgments is as follows : "6. However, we consider that despite the handicaps mentioned above, it would have been more prudent and appropriate for him to have made a proper application to the High Court for extension of time to enable him to comply with the directions of the High Court. Be that as it may, we think that the CRs of an officer are basically the performance appraisal of the said officer and go to constitute vital service record in relation to his career advancement. Any adverse remark in the CRs could mar the entire career of that officer. Be that as it may, we think that the CRs of an officer are basically the performance appraisal of the said officer and go to constitute vital service record in relation to his career advancement. Any adverse remark in the CRs could mar the entire career of that officer. Therefore, it is necessary that in the event of a remark being called for in the confidential records, the authority directing such remark must first come to the conclusion that the fact situation is such that it is imperative to make such remarks to set right the wrong committed by the officer concerned. A decision in this regard must be taken objectively after careful consideration of all the materials which are before the authority directing the remarks being entered in the Crs. In the instant case, the High Court has rested its opinion in regard to the efficiency of the officer based on the fact situation of a single case and that too with reference to the capacity of the officer concerned to control the proceedings of the Court. There was no material before the High Court that this was the case with the Sessions Judge concerned in other cases also nor does the lacuna pointed out by the High Court appear to be such as would undermine the administration of justice." 11. Upon aforesaid discussions and perusal of the aforesaid judgments of Hon'ble Supreme Court as also upon perusal of entire record of the case which is made available by the Government counsel, It is revealed that there is no order-sheet on record which proves that the petitioner's representation was objectively considered with reasons. In the record, which is placed before this Court, the copy of communication dated 15.3.2003 and rejection order dated 20.9.2003 are on record. No order- sheets with regard to considering and deciding the representation which is said to be filed by the petitioner is on record. Therefore, presumption can be drawn that the representation of the petitioner against the ACR in which the petitioner raised so many grounds was not considered by the competent authority and no reasons were recorded in the file for rejection of the representation of the petitioner against the ACR communicated to the petitioner vide communication dated 15.3.2003. 12. Therefore, presumption can be drawn that the representation of the petitioner against the ACR in which the petitioner raised so many grounds was not considered by the competent authority and no reasons were recorded in the file for rejection of the representation of the petitioner against the ACR communicated to the petitioner vide communication dated 15.3.2003. 12. In this view of the matter, while following the aforesaid adjudication made by the Hon'ble Apex Court in the aforesaid judgments, I am of the opinion that the rejection letter dated 20.09.2003 (Annexure-6) is totally against the verdict of Hon'ble Supreme Court. 13. Accordingly, this writ petition is allowed and communication dated 20.09.2003 passed by the Dy. Secretary, Department of Personnel is hereby quashed and set aside. However, it is made clear that the respondents will be at liberty to decide the representation of the petitioner and pass appropriate orders within a period of two months from the date of filing certified copy of this order. Further, it is clarified that if upon consideration of representation filed by the petitioner against the impugned adverse entries in the ACRs for the period 2000-2001 is expunged by the competent authority then the petitioner will be entitled for all consequential benefits.Impugned Writ Petition Allowed, Communication Quashed. *******