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2011 DIGILAW 283 (GUJ)

J. M. Trivedi Gas v. State of Gujarat

2011-04-04

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : V. M. Sahai, J. This intra court Letters Patent Appeal has been filed by the appellant challenging the judgment dated 5.11.2009 passed by the learned Single Judge in Special Civil Application No.13219 of 2008 by which the writ petition filed by the petitioner has been dismissed wherein the adverse entry awarded to the appellant by order dated 15.2.2007 and 16.8.2007 were challenged for the period from 1.4.2002 to 31.3.2003. 2. The Reporting Officer had awarded entry of 'Good' to the appellant whereas the Reviewing Authority had awarded "poor" entry and had further mentioned that the appellant was an incompetent officer and not able to carry out any development work. This adverse entry was communicated to the appellant by the respondent on 24.8.2006. The appellant made representation dated 18.10.2006 against the adverse entry which was rejected by the competent authority on 15.2.2007. Challenging the order dated 15.2.2007 the appellant filed a representation dated 30.6.2007 before the State Government which has also been dismissed on 16.8.2007. Both these orders were challenged by the appellant in the writ petition. 3. We have heard Mr D.A. Bambhania, learned counsel for the appellant and Ms. Sangita Vishen learned AGP for the respondent. Learned counsel for the appellant placed reliance on the decision of this Court in C.N. Chavda v. Director General of Police, Gujarat State 1992 (1) GLH 209 wherein the learned Single Judge had held that the adverse remarks not communicated to the employee within six weeks as provided by the Government Circular dated 27.1.1987 could not be considered against the appellant in view of the Apex Court's decision in State of Haryana v. P C Wadhwa AIR 1987 SC 1201 . 4. We have considered the decision of the learned Single Judge and we have also gone through the decision of the Apex Court. The Single Judge decision in C.N. Chavda and the Apex Court decision in P.C. Wadhwa are not applicable to the facts of the instant case. Before the Apex Court the adverse entry was communicated after twenty seven months. In C.N. Chavda the adverse entry was communicated after about thirteen months though Government Circular dated 27.1.1987 provided that the adverse remarks normally should be communicated within six weeks. In the case in hand the adverse remark for the year 2002-2003 was recorded in June, 2006 which was communicated to the appellant on 24.8.2006 within a reasonable period. In C.N. Chavda the adverse entry was communicated after about thirteen months though Government Circular dated 27.1.1987 provided that the adverse remarks normally should be communicated within six weeks. In the case in hand the adverse remark for the year 2002-2003 was recorded in June, 2006 which was communicated to the appellant on 24.8.2006 within a reasonable period. Therefore, these decisions are of no help to the appellant. 5. It is true that normally an adverse entry should be communicated to the employee within a period of six weeks as per the Government Circular but if there is some delay in communication of the adverse entry that will not render the adverse entry to be bad or illegal. As per the Government Circular dated 27.1.1987, an adverse entry had to be communicated within six weeks is only directory in nature and not mandatory. There may be circumstances wherein adverse entry could not be communicated within the specified period of six weeks but it has to be communicated at the earliest within a reasonable period because non-communication of adverse entry in the confidential report of a public servant has civil consequences. The Government Circular dated 27.1.1987 being directory in nature, there was no obligation on the respondent to communicate the entry within the time limit provided by the Circular. 6. The appellant had been compulsorily retired on 15.7.2008. After his compulsory retirement, he had filed representations challenging the adverse entry communicated to him on 24.8.2006. On the representation of the appellant, final decision had been taken on 15.2.2007 and 16.8.2007. But the appellant did not challenge these orders prior to 15.7.2008, the date on which he was compulsorily retired. After his compulsory retirement, the appellant had challenged the adverse entry for the year 2002-2003 by filing writ petition. We cannot permit the appellant to challenge the orders dated 15.2.2007 and 16.8.2007 by which his representations were rejected after the order for his compulsory retirement was passed on 15.7.2008. He challenged the adverse entry and the orders passed on his representation after about eleven months. The delay, in our opinion, would be fatal and after his compulsory retirement, the appellant could not challenge the adverse entry for the year 2002-2003. 7. Learned counsel for the appellant has urged that he has challenged the order of compulsory retirement and the adverse entry for the period 1.4.2002 to 31.3.2003 by filing different writ petitions. The delay, in our opinion, would be fatal and after his compulsory retirement, the appellant could not challenge the adverse entry for the year 2002-2003. 7. Learned counsel for the appellant has urged that he has challenged the order of compulsory retirement and the adverse entry for the period 1.4.2002 to 31.3.2003 by filing different writ petitions. The Reviewing Officer worked only for a short period of 85 days and during that period he had awarded adverse entry to the appellant for the entire years. He could not assess the work of the appellant for the entire year, therefore, the adverse entry could not be recorded by the Reviewing authority. In para 22 of the writ petition, the appellant had specifically stated that the adverse entry was communicated to him after a period of three years and the Reviewing Authority who had awarded adverse entry worked for a period of less than 90 days. In the affidavit-in-reply, in para 10 it has been stated that the appellant did not fill his self-appraisal form and the adverse entry was recorded in June, 2006 and was communicated to the appellant on 24.8.2006. The learned Single Judge has recorded a categorical finding that the adverse entry was communicated to the appellant well within the time and the appellant made a representation which was rejected on 15.2.2007 by the competent authority. His further representation to the State Government was also rejected by order dated 16.8.2007. Thereafter the appellant did not challenge these orders by filing writ petition and it is only after the appellant was compulsorily retired on 15.7.2008 the appellant woke up after eleven months and filed writ petition challenging the orders dated 15.7.2007 and 16.8.2007 by which the adverse entry awarded to the appellant for the year 2002-2003 were confirmed. The other writ petition filed by the appellant challenging the order of compulsory retirement in which the matter was remitted back to the review committee. The review committee had taken a fresh decision, the result of which is that the appellant stood compulsorily retired. The order has been challenged by a separate writ petition which is pending before the learned Single Judge. 8. We are of the considered opinion that the appellant could not challenge the adverse entry after he had been compulsorily retired at such a belated stage. The adverse entry was communicated to the appellant within reasonable time. 9. The order has been challenged by a separate writ petition which is pending before the learned Single Judge. 8. We are of the considered opinion that the appellant could not challenge the adverse entry after he had been compulsorily retired at such a belated stage. The adverse entry was communicated to the appellant within reasonable time. 9. For the aforesaid reasons, we do not find any merits in this appeal and the appeal fails and is accordingly dismissed. Appeal dismissed.