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Gujarat High Court · body

2011 DIGILAW 532 (GUJ)

M. M. SUHANDA v. STATE OF GUJARAT

2011-07-08

SONIA GOKANI

body2011
JUDGMENT 1. The short question that arises for the determination of this Court in this petition is whether late writing of ephemeral roll and consequently delayed communication of the adverse remarks would vitiate the act of administration. 2. The petitioner serving as a Private Secretary,(English Stenographer Grade-I) Class-II in the Gujarat Civil Services Tribunal, Gandhinagar, was communicated adverse remarks incorporated in his Confidential Report by letter dated 20.3.2001, which was for the period from 21.1.1999 to 9.8.1999. Representation was made by him against this on 30.3.2001 and respondent No.1 rejected his representation on 21.5.2001. By a notification dated 21.7.2001 i.e. after 2 months of the rejection of representation, the respondent No.2 herein was promoted to the post of Principal Private Secretary,Class-I on ad hoc basis, with effect from 1.5.2001 and the petitioner by his letter dated 26.7.2001 requested to the respondent No.1 to promote him to the said post, however, to no avail of his. 3. The petitioner challenged the adverse remarks incorporated in his Confidential Report as also the promotion of respondent No.2 essentially on the ground that the remarks had been communicated to him after a period of 18 months. He has relied heavily on the resolution dated 29.1.1977 that the remarks need to be communicated within 6 weeks. Reliance is also sought to be placed on the judgments of this Court to submit that the remarks communicated beyond 13 months need to be ignored at the time of promotion. Respondents on their appearance filed affidavit-in-reply and denied all the allegations. It is contended by respondents that before preparing select list for the promotion to the post of Principal Private Secretary, Class-I, adverse remarks had been communicated to the petitioner and the decision in this regard had been taken prior to 30.4.2001. After seeking the explanation of the petitioner, his case also was kept open by the Departmental Promotion Committee. He was informed to give explanation and after he submitted his reply and requested to expunge the remark, the said explanation was sent to the Reporting Officer, but he was not satisfied with the said explanation. The Reporting Officer was the then Additional Chief Secretary, Panchayat Rural Housing and Rural Development Department, he however chose to uphold the said remarks. He was informed to give explanation and after he submitted his reply and requested to expunge the remark, the said explanation was sent to the Reporting Officer, but he was not satisfied with the said explanation. The Reporting Officer was the then Additional Chief Secretary, Panchayat Rural Housing and Rural Development Department, he however chose to uphold the said remarks. In view of the decision taken by the Government after due consideration of the letter of the petitioner as well as that of the Reporting Officer, at the relevant time, petitioner was not considered for the post of Principal Private Secretary. It is also contended further that as per the Government Circular dated 29.1.1977 adverse remarks need to be communicated to the Government servant/officer as far as possible within 6 weeks' from the completion of the Confidential Reports for a particular financial year. Thereafter, he has to be given 6 weeks' time for representation and the decision thereon needs to be taken within a period 3 months from the date of receipt of the representation in that regard. In the instant case, according to the respondents, Confidential Report was received on 22.2.2001, the adverse remarks were communicated within a month on 20.3.2001 and on receiving reply of petitioner within 10 days, comments of the Reporting Officer were called for on 7.5.2001 and the final decision was communicated to the petitioner herein on 21.5.2011 which was before conclusion of 3 months' period. His name was again placed before the Departmental Promotion Committee but looking to the adverse remarks of Confidential Report from 21.1.1999 to 9.8.1999, the same was not recommended for the select list. This was also sent to the GPSC subsequent to the representation of the petitioner. However, in view of the adverse remarks, advise was given to drop his name from the select list. Moreover, since the petitioner worked under the Additional Chief Secretary, there was no question of reviewing of his remarks by any other person. Ephemeral rolls, as per Form No.6, are divided into Part-I and Part-II. Part-I gives factual details and the assessment by the Reporting Officer is in Part-II. It is emphasized that in the case of the petitioner, there was no provision for writing Confidential Report by reviewing authority as the petitioner worked under an officer who was a sole officer. Ephemeral rolls, as per Form No.6, are divided into Part-I and Part-II. Part-I gives factual details and the assessment by the Reporting Officer is in Part-II. It is emphasized that in the case of the petitioner, there was no provision for writing Confidential Report by reviewing authority as the petitioner worked under an officer who was a sole officer. It is further contended that merely because there has been delay in writing a Confidential Report that would not ipso facto vitiate or give rise to expungment of remarks in the present case. 4. Both the sides have argued at length in support of their respective stands. According to the learned advocate for the petitioner, the Confidential Report for the period of service from 21.1.1999 to 9.8.1999, ought to have been written by October, 1999, therefore, the period of 6 weeks for communication in writing in the ephemeral roll, should be calculated from the time limit prescribed for writing of such a roll, which in the instant case, according to the learned advocate, will be by November, 1999. Instead of that there has been a delay of nearly 18 months period in communicating the adverse remarks and the contention that simply because it was not written earlier within prescribed time limit when the roll was supposed to be written, cannot sustain. Again the respondent has not written them within the permissible time limit as per the Circular dated 29.1.1977. Reliance is sought to be placed on the following judgments:- 1. Dr.B.R.Kulkarni vs. Govt. of Gujarat reported in 1978 GLR 1021 . 2. M.U.Shaikh vs. The Director of Employment and Training reported in 1996(2) GLH 145 . 3. I.H.Mehta vs. State of Gujarat and Anr. reported in 2001(1) GLH 8 . 5. The Gujarat High Court in the case of Dr. B.R. Kulkarni vs. Govt. of Gujarat(supra) has held that the Confidential Report is required to be written for a unit of one year. In other words, it is a report from year to year and it must primarily relate to the performance, ability and character of the person reported upon during the course of each of such years and the ephemeral roll should be written quarterly when a Reporting Officer should make entries therein about that person's work as seen from day to day. These ephemeral rolls are to be taken into account while writing the Annual Confidential Report of that person. In the said matter before the Court, a disputed position has emerged where the adverse remarks in the Confidential Reports for the previous years were not communicated to the petitioner and he had no opportunity to meet with the said remarks. The Court was of the opinion that if within reasonable time, however, no opportunity is afforded, a person cannot validly enter into consideration for the purpose of considering the claim of promotion. Such adverse remarks, according to the Court, would be of no avail and cannot be relied on for any purpose to the promotion of the petitioner. In the case of the petitioner before the Court the ephemeral roll was not maintained and was not available and in absence of that there was no assessment of the performance of the petitioner nor was there any contemporaneous record of the assessment of such performance and when adverse remarks in the question were made, such material furnishing verifiable facts were not made available to the Reporting Officer, which had led the Court to hold that this infirmity would vitiate the adverse remarks as arbitrary for having been written in the absence of maintenance of ephemeral rolls. 6. In the case of I.H.Mehta vs. State of Gujarat and Anr. (supra), it was held that the adverse remarks were communicated beyond reasonable period and it cannot be considered while judging its merit for higher promotion. 7. In the case of M. U. Shaikh vs. Director of Employment and Training(supra), the petitioner was found fit for the selection grade notwithstanding the adverse remarks and, therefore, the Court held that adverse remarks of the petitioner stood washed off and, therefore, it cannot be relied upon for the purpose of withholding his increments at the stage of efficiency bar. There also the petitioner was communicated the adverse remarks after unreasonable delay and, therefore, for the purpose of withholding increments at the stage of crossing of the Efficiency Bar, the Court disregarded such adverse remarks for the period of 9.6.1977 to 15.1.1978, which were communicated to him on 19.4.1979. There also the petitioner was communicated the adverse remarks after unreasonable delay and, therefore, for the purpose of withholding increments at the stage of crossing of the Efficiency Bar, the Court disregarded such adverse remarks for the period of 9.6.1977 to 15.1.1978, which were communicated to him on 19.4.1979. The Court in that case has also relied upon the decision of the Supreme Court in the case of State of Haryana vs. P.C. Wadhwa reported in 1987 SC 1201 holding that the whole object of making and communicating adverse remarks would be lost if the same are communicated to the officer concerned after an inordinate delay and the provisions relating to communication of adverse entries, although directory in nature, is required to be complied with substantially. This has been relied upon in the case of C.N.Chavda vs. D.G.P. reported in 1992(1) GLH 209 where it was held that the adverse remarks communicated more than 13 months after the relevant period was over, was grossly delayed. 8. One inescapable conclusion emerging from the reading of these judgments, which are pressed into service, is that there are salutary instructions in the Government Resolution dated 29.1.1977. There is a prescribed time limit provided for communicating adverse remarks made in the Confidential Report of the Government employees to enable him to make representation against those remarks where though time prescribed is directory in nature, the same needs to be scrupulously adhered to as provided in the circular, as held by the Supreme Court in the case of State of Haryana vs. P.C. Wadhwa (supra). Hence, time period provided in the said circular for communicating the adverse remarks would be six weeks from the completion of the Confidential Reports whereas the representation called for is within six months from such communication and that needs to be decided within 3 months. Although, in the instant case, the entire requirement has been aptly adhered to and it will not be possible to sustain the grievance of the petitioner of non-communication of adverse remarks after once having been entered in the Confidential Report within the prescribed period. However, corollary to this, vital issue that emerges for consideration of this Court is as to whether the Confidential Report for the period from 21.1.1999 to 9.8.1999 when written on 22.2.2001, could be said to have violated, in any manner, the guidelines of writing the Confidential Report. However, corollary to this, vital issue that emerges for consideration of this Court is as to whether the Confidential Report for the period from 21.1.1999 to 9.8.1999 when written on 22.2.2001, could be said to have violated, in any manner, the guidelines of writing the Confidential Report. As held by this Court in the case of Dr.Kulkarni vs. Govt. of Gujarat (supra), Confidential Reports are to be based on the ephemeral roll, which needs to be maintained in the case of each employee and the same needs to be maintained on a regular basis. In absence of such maintenance of ephemeral roll, complete assessment of the performance of the petitioner for the entire period in question may pose a difficulty. A reason why there is a need to write Confidential Report in time is to ensure that no Government employee be left without an opportunity to defend himself if the same is presented at the eleventh hour at the time of promotion and thus, opportunity bereft of reasonable time cannot be termed as the reasonable opportunity for the time period from 21.1.1999 to 9.8.1999. As per the Government Resolution dated 8.3.1969, the Confidential report are to be written for each calender year where a clause is suggestive that the Reporting Officer should complete the exercise till the end of February every year and the work of reviewing and communication should be completed by the end of April every year. There is a serious lapse on this count also. An emphasis was laid before this Court that no prejudice much less serious prejudice is caused to the petitioner on account of late communication of the Confidential Report in as much as he was duly considered for the post of promotion as the final merit list was not finalized before receiving his communication with regard to the adverse remarks. The chronological events were emphasized during the course of arguments to suggest that his interest have been duly protected and the allegation of arbitrariness and mala fide have no supporting base. Instructions contained in the Government Resolution dated 8.3.1969 are executive in character, considering the far reaching ramifications, on account of departing from the same, the same should be held to be implemented in strict compliance. Instructions contained in the Government Resolution dated 8.3.1969 are executive in character, considering the far reaching ramifications, on account of departing from the same, the same should be held to be implemented in strict compliance. The petitioner in the present case, can be said to have been discriminated again when it is found from the record that these executive instructions have been departed from for the period between January,1999 to August, 1999. The Confidential Report ought to have been written by February, 2000 and had there been any adverse remarks incorporated in the Confidential Report, the same were required to be communicated within 6 weeks, whereas in the instant case, on account of late writing of the Confidential Report, looking to the delay from that angle, remarks in the Confidential Report had been communicated in February, 2001. Going by the circular dated 8.3.1969 the exercise which was otherwise required to be completed in April, 2000 was completed by May, 2001. The communication of course was in the month of February, 2001 and, therefore it can be said that had the Confidential Report been written well within time, the same could have been communicated nearly before 40 weeks. If the Court disregards the angle of writing Confidential Reports and only harps on the other part of the late communication of the same, it would not be doing complete justice to the subject and that would amount to looking at the issue in truncated manner. Administration cannot be permitted to disregard circular dated 8.3.1969 and insist upon due compliance of circular dated 29.1.1977 as both are complementary in nature and since both subserve the objective of protecting the interest of the employee and affording them reasonable opportunity to represent their case, implementation of both simultaneously will be necessary. In the instant case, one part of obligations have been duly fulfilled by the respondents. However, the part which was to be preceded, has remained neglected. Instances all through out on the part of the respondents was to the fact that the this late communication in no manner affected the chance of promotion of the present petitioner for it has been emphasized that the select list had not been finalized till the receipt of communication from the petitioner. However, the fact remains that the select list had been of 9.3.2001. However, the fact remains that the select list had been of 9.3.2001. It can be said reference to the petitioner's representation, that on 26.7.2001, for Government's consideration, it was decided to include his name provisionally but it was sent to GPSC, which had turned down the said request on account of adverse remarks and since the advice of the GPSC was accepted by the Government, finally he was not promoted to the post of Principal Private Secretary. Taking stock of the entire situation, cumulatively, it needs to be held that the adverse remarks communicated after a period nearly 40 weeks from the stipulated period, they are required to be set aside. Resultantly, the decision of the respondents of the adverse remarks made against the petitioner in his Confidential Report for a specific period from 21.1.1999 to 9.8.1999 which was communicated to him on 20.3.2001, is treated as illegal and having no effect in the eyes of law. Similarly, order made by the respondents as communicated to the petitioner under the letter dated 1.5.2001 rejecting his representation also is treated as invalid and held as having no effect. The adverse remarks in the petitioners Confidential Report are to be eliminated from the Confidential Report for the period in question. 9. As far as the request of the petitioner of promoting him to the post of Principal Private Secretary with all the consequential benefits from 1.5.2001 is concerned, this Court is of the opinion that promotion to the post in question can be given only on the basis of the proved merit and ability and, therefore nobody gets the right to be promoted on the said post unless he proves his merit and ability and in such circumstances, the only right that the petitioner gets is to be considered on the post and not the right to be promoted as a consequential relief. As held hereinabove, as adverse remarks communicated have been held of having no effect. For the reasons enumerated hereinabove, the respondent can be at the most directed to consider the case of the petitioner and only on his proving his merit and ability, his case to be considered for the promotion. This decision shall be taken within four months of this order and communication shall be made thereafter within 4 weeks by the Departmental Promotion Committee and other bodies, if any. 10. This decision shall be taken within four months of this order and communication shall be made thereafter within 4 weeks by the Departmental Promotion Committee and other bodies, if any. 10. With this, the petition is allowed and the Rule is made absolute to the extent mentioned hereinabove.