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2016 DIGILAW 1418 (GUJ)

J. N. Thaiyam v. State of Gujarat

2016-07-21

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred with the following prayers: "(A) quash and set aside the adverse entry recorded in the Annual Confidential Report of the petitioner for the period from 1.4.2006 to 11.8.2006, and (B) quash and set aside the adverse entry recorded in the Annual Confidential Report of the petitioner for the period from 12.8.2006 to 31.3.2007, and (C) award the cost of this petition, and (D) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from taking into consideration the adverse entry recorded in the Annual Confidential Reports of the petitioner for the period from 1.4.2006 to 11.8.2006 and from 12.8.2006 to 31.3.2007, against the petitioner for any purpose, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from superseding the petitioner in the matter of promotion, on the post of Deputy Director, Social Welfare, Class-I/District Backward Class Welfare Officer, Class-I, only on the ground of recording of adverse entry in the Annual Confidential Reports of the petitioner for the period from 1.4.2006 to 11.8.2006 and from 12.8.2006 to 31.3.2007, and (F) grant any other relief or pass any other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case." 2. Insofar as the prayer at Paragraph-7(B) is concerned, it is submitted by Mr. Vaibhav A. Vyas, learned advocate for the petitioner, that this prayer no longer survives in view of the fact that the adverse entry recorded in the Annual Confidential Report of the petitioner for the period from 12.08.2006 to 31.03.2007 regarding his integrity, has been expunged by respondent No. 2 by passing the order dated 03.02.2012. This aspect has also been confirmed in the affidavit-in-reply filed by respondent No. 1. The only prayer now remaining in the petition is for quashing and setting aside the adverse entry recorded in the Annual Confidential Report of the petitioner for the period from 01.04.2006 to 11.08.2006, whereby the Reviewing Officer has downgraded the assessment of the Reporting Officer by holding the petitioner to "an average officer". During the period covered under Prayer-7(A), there was also an adverse entry regarding the integrity of the petitioner which has been expunged as noted hereinabove. 3. During the period covered under Prayer-7(A), there was also an adverse entry regarding the integrity of the petitioner which has been expunged as noted hereinabove. 3. Briefly stated, the relevant facts of the case are that the petitioner joined services on the post of Assistant Social Welfare Officer (Class-III) on 27.04.1982. He was promoted on the next higher post of Social Welfare Officer (Class-II) on 01.08.2001. His date of birth being 27.08.1954, the petitioner has superannuated from service on 31.08.2012. Two adverse entries were recorded in the Annual Confidential Report of the petitioner from the period 01.04.2006 to 11.08.2006. Out of the two, one was with regard to his integrity and the other was regarding the downgrading by the Reviewing Officer as 'Average'. As already stated hereinabove, the adverse entry regarding the integrity of the petitioner has been expunged, therefore, only the entry whereby the petitioner has been assessed as 'Average' remains to be adjudicated. The Annual Confidential Report of the petitioner for the period from 12.08.2006 to 31.03.2007 also contained an adverse entry with regard to his integrity which has been expunged. Aggrieved by the assessment of the Reviewing Officer as 'Average', the petitioner has approached this Court. Under the circumstances, the Court will, therefore, confine its adjudication only to the adverse entry assessing the petitioner as 'Average'. 4. Mr. Vaibhav A. Vyas, learned advocate for the petitioner, has submitted that the State Government has, time and again, issued Circulars to its Officers giving instructions with regard to the manner in which assessments are to be made by the Reporting Officers and the Reviewing Officers. One such Circular is dated 06.03.2004. In the said Circular, only four gradings are permitted to be made, namely, 'Outstanding', 'Very good', 'Good' and 'Unfit'. It is provided in Clauses-5, 6 and 7 of the said Circular dated 06.03.2004, that if the Reviewing Officer disagrees with the assessment of the Reporting Officer, he is bound to give reasons for such disagreement in writing. It is further provided that if the Reviewing Officer alters the assessment of the Reporting Officer without giving reasons, such assessment by the Reviewing Officer would not be acceptable. It is further provided that if the Reviewing Officer alters the assessment of the Reporting Officer without giving reasons, such assessment by the Reviewing Officer would not be acceptable. Referring to the Circular dated 29.11.2006, learned counsel for the petitioner has submitted that similar instructions have been given in Clause-5 of the said Circular as well, wherein it is provided that if the Reviewing Officer either upgrades or downgrades the assessment made by the Reporting Officer, he has to record reasons for doing so in writing. Learned counsel for the petitioner has then referred to the Circular dated 20.06.2007, wherein, in Clause-3.3, it is provided that the Reviewing Officer is bound to record reasons if the assessment recorded by the Reporting Officer is altered by him. Further, Clause-6.3 of the said Circular provides that if the Reviewing Officer agrees with the assessment of the Reporting Officer, then he shall maintain the same assessment. Learned counsel for the petitioner contends that though the Reviewing Officer has power to alter the assessment of the Reporting Officer and either downgrade or upgrade the employee so assessed, however, he has to do so in accordance with the instructions given by the State Government in the above Circulars by recording reasons in writing. In the present case, the Reporting Officer has assessed the petitioner as 'Good', which has been downgraded by the Reviewing Officer to 'Average', without recording any reasons in writing. Hence, the action of the Reviewing Officer in assessing the petitioner is in contradiction to the instructions of the State Government and deserves to be quashed and set aside. 5. The petition has been strongly opposed by Mr. Niraj Ashar, learned Assistant Government Pleader, by submitting that the Reviewing Officer has all power to downgrade the assessment of the employee, which has been done in the present case. The petitioner, therefore, can have no grievance if the assessment is downgraded from 'Good' to 'Average'. 5. The petition has been strongly opposed by Mr. Niraj Ashar, learned Assistant Government Pleader, by submitting that the Reviewing Officer has all power to downgrade the assessment of the employee, which has been done in the present case. The petitioner, therefore, can have no grievance if the assessment is downgraded from 'Good' to 'Average'. It is further submitted by learned Assistant Government Pleader that though only four gradings of 'Outstanding', 'Very good', 'Good' and 'Unfit' are permissible as per the Government Circular dated 06.03.2004, however, the State Government has clarified, by way of the Government Resolution dated 02.02.2005, issued by the General Administration Department, that if the words 'Okay', 'Average' or 'General' are used in the Annual Confidential Report, then the same should be considered as adverse remarks and are required to be communicated to the person against whom they are used. This instruction has further been clarified by the Government Resolution dated 29.11.2006. It is submitted that the downgrading of the assessment of the petitioner from 'Good' to 'Average', would be treated as adverse remarks and has already been communicated to him, therefore, the petitioner can have no grievance. 5.1 On the above ground, it is prayed that the petition be rejected. 6. This Court has heard learned counsel for the respective parties and perused the averments made in the petition, contents of the orders annexed to the petition and other documents on record. 7. Insofar as the power of the Reviewing Officer to upgrade or downgrade the assessment recorded by the Reporting Officer is concerned, there can be no dispute that such power is vested in him by the Government Circulars dated 06.03.2004, 29.11.2006 and 20.06.2007. Being the superior authority, it stands to reason that the Reviewing Officer would be empowered to make an independent assessment on the basis of the material on record and either agree or disagree with the assessment made by the Reporting Officer. 8. The issue raised in the present petition is whether the Reviewing Officer has exercised this power in accordance with the instructions of the State Government, or not. 9. In the Government Circular dated 06.03.2004, it is stated in Clause-5, that if the Reviewing Authority disagrees with the assessment of the Reporting Authority by either upgrading or downgrading the officer being assessed, he has to record reasons in writing and only then would his assessment be acceptable. 9. In the Government Circular dated 06.03.2004, it is stated in Clause-5, that if the Reviewing Authority disagrees with the assessment of the Reporting Authority by either upgrading or downgrading the officer being assessed, he has to record reasons in writing and only then would his assessment be acceptable. Clause-6 of the said Circular stipulates that after agreeing with the assessment of the Reporting Authority, the Reviewing Authority should avoid altering the assessment so made as, in such a case, a contradiction would arise. Clause-7 of the Circular stipulates that only if the Reviewing Officer gives clear reasons in writing for disagreeing with the assessment of the Reporting Officer, would the assessment of the former be acceptable. Similarly, Clause-5 of the Circular dated 29.11.2006 clearly states that if the Reviewing Authority decides to make any alteration in the assessment made by the Reporting Officer by either upgrading or downgrading the employee concerned, he is required to clearly state the reasons for such alteration. 10. Similarly, Clause 3.3 of the Circular dated 20.06.2007 enjoins the Reviewing Officer to record reasons in case he upgrades or downgrades the assessment made by the Reporting Officer. In Clause 6.3, it is stated that if the Reviewing Authority agrees with the Reporting Authority, he is required to maintain the same assessment. 11. A cumulative perusal of the above three Circulars, therefore, makes it clear that the common theme running through them is that though the Reviewing Authority though vested with the power to alter the assessment made by the Reporting Authority by either upgrading or downgrading an employee, is required to give clear and cogent reasons in writing while doing so. It is only when clear reasons in writing for disagreeing with the assessment of the Reporting Officer are given by the Reviewing Officer, that the assessment so made by him would be acceptable. In the event that the Reviewing Officer agrees with the assessment of the Reporting Officer, he shall maintain the same assessment. 12. In the present case, the Reporting Officer has made the overall assessment of the petitioner with effect from 01.04.2006 to 11.08.2006 as 'Good'. This is clear from the Form of the Confidential Report at Annexure-R-2 annexed to the additional affidavit filed by the petitioner (at running page 49). Part-IV (at running page 50) of the said Form contains the remarks of the Reviewing Officer. This is clear from the Form of the Confidential Report at Annexure-R-2 annexed to the additional affidavit filed by the petitioner (at running page 49). Part-IV (at running page 50) of the said Form contains the remarks of the Reviewing Officer. In Clause-2 where a question is asked "Do you accept the assessment by the reporting Officer in all respect? if not, indicate the items on which you disagree and give your assessment on those items", the Reviewing Authority has stated "agreed". Having agreed with the assessment made by the Reporting Officer, the Reviewing Officer has proceeded to record the overall assessment of the petitioner as "he is an average officer". If the Reviewing Officer has already agreed with the assessment made by the Reporting Officer, he would have to maintain the same assessment in the first place, as per Clause 6.3 of the Circular dated 20.06.2007. The Reviewing Officer has deviated from the instructions of the State Government contained in the said Circular in this regard. Further, even if the Reviewing Officer intends to disagree with the assessment made by the Reporting Officer, he is bound to give clear reasons in writing for doing so. It is an admitted position, amply illustrated from the record annexed to the petition, that such is not the case. No reasons, whatsoever, have been given by the Reviewing Officer for downgrading the assessment made by the Reporting Officer from 'Good' to 'Average'. It is clear from the affidavit-in-reply filed by respondent No. 1 that the assessment of 'average' will be considered as an adverse one. The Reviewing Officer has, therefore, downgraded the assessment of the petitioner from 'Good' to 'Average', resulting in making an adverse entry in his Annual Confidential Report for the period from 01.04.2006 to 11.08.2006, without giving any reasons, which action is dehors the Circulars of the State Government dated 06.03.2004, 20.06.2007 and 29.11.2006. 13. The power of the Reviewing Officer to alter the assessment made by the Reporting Officer cannot be questioned. However, there can be no two views regarding the fact that when such power is entrusted to an Authority, it has to be exercised in accordance with the instructions issued by the State Government for such exercise, in the manner it is intended to be exercised. However, there can be no two views regarding the fact that when such power is entrusted to an Authority, it has to be exercised in accordance with the instructions issued by the State Government for such exercise, in the manner it is intended to be exercised. In the present case, the Reviewing Officer has acted in contradiction to the instructions contained in the Government Circulars and, in doing so, has caused prejudice to the petitioner. There is no reply to this aspect in the affidavit-in-reply and neither has it been stated that any reasons have been given by the Reviewing Officer for downgrading the assessment of the Reporting Officer in the case of the petitioner. 14. In view of the above discussion and for the aforestated reasons, this Court is of the view that the petitioner has a good case on merits which deserves to succeed. Accordingly, the following order is passed: "The adverse entry assessing the petitioner as an 'average officer' in the Annual Confidential Report of the petitioner for the period from 01.04.2006 to 11.08.2006, is quashed and set aside." 15. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.