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2011 DIGILAW 1323 (RAJ)

State of Rajasthan v. Mahendra Singh Sodha

2011-07-07

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition, the State of Rajasthan through the Director, State Insurance & Provident Fund Department, Rajasthan, Jaipur is challenging the validity of the judgment dated 26.8.2010, Annex. 10, passed by the Rajasthan Civil Services Appellate Tribunal in Appeal No. 363/2000, whereby, learned Tribunal allowed appeal filed by the respondent and issued direction to the petitioner Department to promote the respondent with effect from the date his juniors were promoted and to give all actual consequential benefits to the respondent. 2. Brief facts of the case are that the respondent while working on the post of L.D.C. preferred an appeal before the Rajasthan Civil Services Appellate Tribunal for quashing adverse remarks communicated to him vide impugned letter dated 7.8.1991 and, so also, order dated 11.6.1992, whereby, his representation filed against the adverse remarks communicated to him was rejected. 3. Before the Tribunal the main ground taken by the respondent was that the adverse remarks for the years 1985-86 and 1986-87 were communicated to him on 11.6.1992 i.e., after delay of 4-5 years and the representation filed against the adverse remarks was rejected in very cryptic manner, therefore, while quashing those remarks the department may be directed to promote him with effect from the date his junior persons were promoted. 4. Learned counsel for the petitioner submits that the judgment under challenge rendered by the Civil Services Appellate Tribunal deserves to be quashed because as per the service jurisprudence the adverse remarks entries are given by the reporting officer to improve the performance of the subordinate employee and to make introspection in his functioning and not to penalise him. The healthy tradition of maintaining impartial ACRs with care and caution is working as bulwark in maintaining discipline and preventing insubordination amongst government employees. It is further submitted that adverse entries given by the reporting officer although affects the future career of the subordinate employee to whom such adverse remarks are communicated but, for the same, it cannot be said that there is illegality or irregularity in assessing the working of the subordinate. 5. It is further submitted that adverse entries given by the reporting officer although affects the future career of the subordinate employee to whom such adverse remarks are communicated but, for the same, it cannot be said that there is illegality or irregularity in assessing the working of the subordinate. 5. In the instant case, as per learned counsel for the petitioner, there is no procedural irregularity or illegality in the procedure followed by the petitioner, therefore, in the absence of any material to controvert the adverse remarks learned Tribunal committed grave error in setting aside the adverse remarks merely on the ground of delay in communicating the adverse remarks. Hence, it is prayed by learned counsel for the petitioner that judgment of the Tribunal deserves to be quashed which is based solely on the ground of delay in communicating the adverse remarks. 6. Learned counsel appearing on behalf of the respondent submits that no illegality has been committed by the Tribunal while allowing the appeal of the respondent because admittedly the adverse remarks were communicated to the respondent in the year 1991 which were of the years 1985-86 and 1986-87, against which, representation was filed by the respondent employee but the same was illegally rejected in very cryptic manner vide order dated 11.6.1992. 7. While inviting attention of the Court towards certain judgments of this Court, it is submitted by learned counsel for the respondent that no interference is required in this writ petition. Counsel for the respondent cited the following judgments: 1. WLC 1992(2) page 669 2. WLC 1992(2) page 587 3. RLW 2009(2) page 973 and 4. WLC 1992 (3) page 726. I have considered rival submissions made by both the parties. 8. Undisputedly, in this case, adverse remarks for the year 1986-86 and 1986-87 were communicated to the respondent employee in the year 1991 vide letter dated 7.8.1991, against which, a representation was filed by the respondent but the same was rejected on 11.6.1992. The purpose of communicating the adverse remarks is to apprise the subordinate employee is that he should improve his performance to work in the government department, therefore, it is incumbent upon the appointing authority to communicate the same within time. Obviously if these remarks were communicated after lapse of 4-5 years, then, in my opinion, those adverse remarks lost their significance, for which, the adverse remarks need be communicated to the employee. 9. Obviously if these remarks were communicated after lapse of 4-5 years, then, in my opinion, those adverse remarks lost their significance, for which, the adverse remarks need be communicated to the employee. 9. In the judgment of this Court, rendered in Richhpal Singh's case, 1992 (2) WLC 669, the co-ordinate Bench held that delay in communication of adverse remarks after four years after the expiry of prescribed time schedule is not justified because it loses the very purpose for which it is to be communicated to the employee within time. 10. In this view of the matter, in my opinion, no error has been committed by the learned Tribunal while quashing the adverse remarks for the years 1985-86 and 1986-87, communicated to the respondent employee vide letter dated 7.8.1992 and quashing order dated 11.6.1992, whereby, the representation of the respondent was rejected. However, the further direction given by the Tribunal deserves to be modified, by which, learned Tribunal straight away directed the department to promote the respondent with effect from the date his juniors were promoted and to give all actual benefits because promotion is required to be made after due consideration by the DPC while assessing the suitability of the incumbent for such promotion. 11. Therefore, while modifying the order of the Tribunal with regard to direction issued to the department to promote the respondent with effect from the date his juniors were promoted and to give all actual consequential benefits, this writ petition is partly allowed and in place of direction, "State is directed to promote the appellant with effect from the date his juniors were promoted and given the appellant all actual consequential benefits", it is ordered that the petitioner department is hereby directed to convene meeting of review DPC and consider the candidature of the respondent (herein) for granting promotion on the basis of his service record and if the respondent employee is found suitable for promotion in a particular year, when his junior person was promoted, then, respondent may be promoted and granted all consequential benefits. Further, the DPC shall ignore the ACRs of the respondent relating to year 1985-86 and 1986-87 at the time of considering the candidature of the respondent for promotion. The matter shall be decided finally within a period of three months from the date of receipt of certified copy of this order. 12. No order as to costs.