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2016 DIGILAW 1462 (GUJ)

N. R. Kalaria v. State of Gujarat

2016-07-25

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. The challenge in this petition under Article 226 of the Constitution of India is to the adverse entries recorded in the Annual Confidential Reports (ACRs) of the petitioner for the period from 01.04.2006 to 23.03.2007 and 01.04.2007 to 12.12.2007. It is further prayed that the respondent authorities be directed not to withhold the promotion of the petitioner to the post of Executive Engineer on the ground of the adverse entries for the said period. 2. Briefly stated, the relevant facts of the case are that the petitioner joined service under the State Government as Assistant Engineer (Mechanical) on 28.02.1980. In due course, the petitioner was promoted on the post of Deputy Executive Engineer (Mechanical) in February, 2004. Since then the petitioner is serving on the said post. The next promotional post is that of Executive Engineer. The date of birth of the petitioner being 05.10.1955, he would superannuate in October, 2013. The promotion to the post of Executive Engineer would be the last promotion for the petitioner before his retirement. Somewhere in the last week of March, 2011, the Departmental Promotion Committee (DPC) was convened to consider the case of suitable persons for promotion to the post of Executive Engineer. The name of the petitioner was considered. However, to his shock and surprise on 31.03.2011, the petitioner received a communication dated 25.03.2007 from the Office of the Executive Engineer, Rajkot, enclosing therewith the letters of the State Government dated 12.07.2010 and 22.02.2011, conveying that there are adverse entries in the Annual Confidential Reports of the petitioner for the period from 01.04.2006 to 23.03.2007 and from 01.04.2007 to 12.12.2007. It is stated therein that as the petitioner had not responded to the said adverse entries, an extension was granted to him by the letter dated 22.02.2011, a copy of which was also enclosed with the forwarding letter dated 25.03.2011. 2.1 It is the case of the petitioner that the said adverse entries were never communicated to him. The communication dated 22.02.2011, sent along with the forwarding letter dated 25.03.2011, have reached the petitioner only on 31.03.2011, before which date the adverse entries had already been confirmed by an order dated 10.03.2011, passed by the State Government. 2.1 It is the case of the petitioner that the said adverse entries were never communicated to him. The communication dated 22.02.2011, sent along with the forwarding letter dated 25.03.2011, have reached the petitioner only on 31.03.2011, before which date the adverse entries had already been confirmed by an order dated 10.03.2011, passed by the State Government. According to the petitioner, the failure to communicate the adverse entries within the stipulated period of time would vitiate the said entries, which are liable to be quashed and set aside. As the representations of the petitioner have not been heeded and the adverse entries have been maintained, the petitioner is before this Court. 3. Mr. Vaibhav A. Vyas, learned advocate for the petitioner has submitted that, as per the Circular of the State Government dated 01.05.2004, an adverse entry has to be communicated to the concerned employee within a period of six weeks from the date of assessment by the Reviewing Officer. Thereafter, a period of six weeks is required to be given to the employee to make a representation. The respondent authority would thereafter decide the representation, within a period of three months. In the present case, no such procedure has been followed. As admitted by respondent No. 4 in the affidavit-in-reply, the communication of the adverse remarks was made by a letter dated 13.08.2010, which was sent by post. However, the said letter has been lost in transit. The second communication, by the letter dated 25.03.2011, has been received on 31.03.2011, after the adverse remarks had already been confirmed. It is submitted that this procedure is dehors the instructions of the State Government, as contained in the Circular dated 01.05.2004, as well as the principles of law laid down by this Court in Special Civil Application No. 252 of 2009, vide judgment dated 20.01.2016, in the case of B.M. Rajvanshi Vs. State of Gujarat & Ors. 3.1 On the strength of the above submissions, it is prayed that the adverse remarks be quashed and set aside and the respondents be directed to consider the petitioner for promotion to the next higher post. 4. Ms. Snusha Joshi, learned Assistant Government Pleader, has submitted that the Executive Engineer, Rajkot, did communicate the adverse remarks to the petitioner by a letter dated 13.08.2010, sent by Post. Unfortunately, the said letter never reached the petitioner and was lost in transit. 4. Ms. Snusha Joshi, learned Assistant Government Pleader, has submitted that the Executive Engineer, Rajkot, did communicate the adverse remarks to the petitioner by a letter dated 13.08.2010, sent by Post. Unfortunately, the said letter never reached the petitioner and was lost in transit. The Executive Engineer, Rajkot, Mechanical Division (R & B), again communicated the adverse remarks to the petitioner by a letter dated 25.03.2011. However, this communication also reached the petitioner late. In the meanwhile, the adverse entry had already been confirmed by the State Government on 10.03.2011. That the delay in communication has occurred due to poor coordination between the concerned office of the Department. Learned Assistant Government Pleader has drawn the attention of the Court to Paragraph-2 of the affidavit-in-reply filed by the State Government, wherein such averments are made. 5. This Court has learned counsel for the respective parties, perused the averments made in the petition, the contents of the affidavit-in-reply and other documents on record. 6. From the clear averments made in the affidavit-in-reply filed by respondent No. 4, it emerges as an admitted position that the adverse entries in the ACRs of the petitioner were not communicated to him within the period of six weeks from the date of the assessment by the Reviewing Officer, as required by the Circular of the State Government dated 01.05.2004. It also remains undisputed that the letter dated 13.08.2010, sent by the Executive Engineer, Rajkot, Mechanical Division (R & B), communicating the adverse remarks to the petitioner was lost in transit and never reached him. The second communication dated 25.03.2011 was received by the petitioner only on 31.03.2011. Before that date, the State Government had already confirmed the adverse remarks on 10.03.2011, without having communicated them to the petitioner or granting an opportunity to represent against them. 7. In Special Civil Application No. 252 of 2009 (B.M. Rajvanshi Vs. State of Gujarat & Ors.) relied upon by learned counsel for the petitioner, one of the issues that arose for consideration was the late communication of the adverse entries. The law laid down by the Supreme Court and this Court in this regard has been discussed and this Court held as below: "10. State of Gujarat & Ors.) relied upon by learned counsel for the petitioner, one of the issues that arose for consideration was the late communication of the adverse entries. The law laid down by the Supreme Court and this Court in this regard has been discussed and this Court held as below: "10. The only issue that now remains for adjudication is whether the delay in the communication of the adverse remarks, which in the present case, is of about twenty-five weeks, would vitiate the adverse remarks and whether they ought to be quashed and set aside on this ground alone. 11. In order to decide this issue, it may be fruitful to advert to a judgment of the Supreme Court in the case of State of Haryana Vs. Shri P.C. Wadhwa, IPS, Inspector General of Police And Another reported in AIR 1987 SC 1201 . The relevant paragraph of the judgment is extracted hereinbelow: "14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case maybe. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent." 12. In the above judgment, though the Supreme Court has held that the Rules under consideration in that case pertaining to the communication of adverse remarks were directory and not mandatory, however, it was held that this does not mean that directory provisions need not be complied with even substantially. 13. As held by the Supreme Court, the very object of making and communicating the adverse remarks is to give to the Officer concerned, an opportunity to improve his performance, conduct or character, as the case may be. Inordinate delay in the communication of the adverse remarks would go against the spirit and object of such directory provisions and would not be a substantial compliance thereof. In the above case, though the Supreme Court did not go into the question of setting aside the adverse remarks on this ground, however it clearly recorded its disapproval of the inordinate delay in communicating the adverse remarks to the respondent therein. 14. In I.H. Mehta Vs. State of Gujarat (supra), this Court, after taking into consideration the judgment in the case of State of Haryana Vs. Shri P.C. Wadhwa, IPS, Inspector General of Police And Another (supra), has quashed the adverse remarks in the case of the petitioner therein, on the ground of inordinate delay. The relevant paragraphs of the said judgment are reproduced hereinbelow: "8. I have considered the averments made by the petitioner in this petition as well as the submissions made by Mr. Parikh for the petitioner and Mr. Desai for the respondent authorities. I have also taken into consideration the decisions cited by Mr. Parikh in support of his submissions. In 1985 (2) GLR 616 , the question of communication of adverse remarks to the employee concerned has been considered by the division bench of this court and it has been observed that the merits or demerits are to be judged on the basis of four factors, as per the rules already referred to hereinabove. In 1985 (2) GLR 616 , the question of communication of adverse remarks to the employee concerned has been considered by the division bench of this court and it has been observed that the merits or demerits are to be judged on the basis of four factors, as per the rules already referred to hereinabove. In 1992 (1) GLH 209 , it has been observed by this court that the adverse remarks and the adverse entries in the petitioner's confidential report for the period between 13.10.1986 and 31.3.1987 were communicated to the petitioner after about thirteen months. The Government circulars issued from time to time provided that the adverse remarks should be communicated within six weeks and also that the aggrieved employee should make representation within six weeks from the date of communication of such adverse remarks. In view of grossly belated communication of the adverse remarks, the authority was directed to ignore those adverse entries. The learned single Judge of this court has relied upon the decision of the apex court in case of State of Haryana versus P.C. Vagha, reported in AIR 1987 SC 1201 . Mr. Parikh has submitted that the adverse remarks for the period from 1st April, 1984 to 31st March, 1985 has been communicated to the petitioner on 10th December, 1985 and there was gross delay in communication of the adverse report and therefore, considering the decision of this court, such adverse remarks in the confidential report of the petitioner now cannot be considered against the petitioner and the show cause notice was issued by the respondent authority on 24th September, 1986 relying upon the said adverse entry. Said adverse remarks were made absolute by order dated 8th September, 1986 and the petitioner was not permitted to cross the Efficiency Bar. He has, therefore, submitted that in view of the facts of the present case and the law laid down by this court as well as the apex court, the present petitions should be allowed by granting reliefs as prayed for in the present petition as prayed for. 9. He has, therefore, submitted that in view of the facts of the present case and the law laid down by this court as well as the apex court, the present petitions should be allowed by granting reliefs as prayed for in the present petition as prayed for. 9. Therefore, in light of the decisions cited above and considering the government resolution dated 20.1.1972 and 19.9.1975, the order passed by the respondent authority dated 10th December, 1985 confirming the said adverse entries by order dated 8th September, 1986 and the show cause notice dated 24th September, 1986 are required to be quashed and set aside by allowing this petition. Accordingly, order dated 10th December, 1985 as well as the order dated 8th September, 1986 and the show cause notice dated 24.9.1986 are hereby quashed and set aside and the respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring the said adverse remarks for the aforesaid period from 1st April, 1984 to 31st March, 1985 and it is also declared that the petitioner is entitled to normal increment from 1st June, 1985 till the date of his retirement. The respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring his adverse entries as aforesaid as expeditiously as possible, preferably within two months from the date of receipt of certified copy of this order. The respondents are further directed to release normal and regular increments of the petitioner from 1st June, 1985 and to pay all the difference of arrears of such increments within two months from the date of receipt of certified copy of this order. The respondents are also directed to fix the salary of the petitioner after releasing regular and normal increments from 1st June, 1985 and to pay-whatever arrears available to the petitioner within two months from the date of receipt of certified copy of this order. Rule is made absolute accordingly with no order as to costs." (emphasis supplied) 15. In judgment dated 01.08.2012, passed by this Court in Special Civil Application No. 485 of 2004 as well, this Court found that the explanation rendered by the respondents for the late communication of the adverse remarks was not at all justified. Rule is made absolute accordingly with no order as to costs." (emphasis supplied) 15. In judgment dated 01.08.2012, passed by this Court in Special Civil Application No. 485 of 2004 as well, this Court found that the explanation rendered by the respondents for the late communication of the adverse remarks was not at all justified. It was held that the adverse entries would not come in the way of the petitioner for getting the higher pay-scale. This is what the Court held: "6. In view of above, the petition is required to be allowed on the ground that adverse remarks were communicated without any justification at a very late stage and considering the averments made in the affidavit, there is no justification for communicating the same to the petitioner at such a late stage. The petition is accordingly allowed. The order impugned in the present petition is quashed and set aside. Respondents are directed to give benefit of higher pay-scale to the petitioner with effect from 14th July, 2000 instead from 14th July, 2001. If any amount is required to be paid to the petitioner in this behalf, the same maybe paid within a period of three months from today. Rule is made absolute accordingly with no order as to costs." (emphasis supplied) 16. In a recent judgment of this Court, in the case of M.M. Suhanda Vs. State of Gujarat And Anr. (supra), it is held as below: "8. ....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." (emphasis supplied) 8. The above principles of law would be squarely-applicable in the present case as well. The adverse remarks in the petitioners Confidential Report are to be eliminated from the Confidential Report for the period in question." (emphasis supplied) 8. The above principles of law would be squarely-applicable in the present case as well. The position of law with regard to the communication of adverse entries is very clear. The whole object of communicating the adverse entries to the concerned employee is to grant him an opportunity to improve his performance. Adverse remarks are in the nature of a warning or communication to the Officer to improve his service career. The entire object of making an adverse entry would be lost if the said entry is not communicated to the Officer on time, or is communicated after a gross delay. In the present case, the date on which the assessment was made by the Reviewing Officer does not emerge from any of the documents on record, or from the affidavit-in-reply filed by the State Government. Even if it is assumed considered that the communication of adverse remarks was sent by Post within the stipulated period of six weeks, it is an undisputed position that it has never reached the petitioner. This fact is acknowledged by-respondent No. 4 in the affidavit-in-reply. The second communication dated 25.03.2011 has, undoubtedly, been sent beyond the permissible period of six weeks. This communication, which has not been made within the stipulated period of time, has reached the petitioner only on 31.03.2011, after the adverse entries had already been confirmed on 10.03.2011. The respondents, while admitting that the adverse remarks were never communicated to the petitioner within the stipulated period of time, have proceeded to confirm the said adverse remarks without there being any proper communication and without granting an opportunity of representation to the petitioner. This course of action is certainly not in accordance with the intention of the State Government, as expressed in the Circular dated 01.05.2004, and the principles of law laid down by the Supreme Court and this Court in the judgment quoted hereinabove. 9. From a perusal of the affidavit-in-reply filed by respondent No. 4, the only reason that emerges for the inordinate delay in communicating the adverse remarks is that the earlier communication got lost in transit as there was poor coordination between the offices of the respondents. The narration in the affidavit-in-reply is a sad reflection on the functioning of the Government machinery. The narration in the affidavit-in-reply is a sad reflection on the functioning of the Government machinery. Such an excuse can never be accepted, to the detriment to the petitioner, who has not been dealt with fairly, insofar as the communication of the adverse entries is concerned. The petitioner has been deprived of his right to make a representation, in violation of the principles of natural justice. The uncommunicated adverse entries, therefore, cannot be taken into consideration as per the settled position of law. 10. For the reasons stated hereinabove, the following order is passed: The adverse entries recorded in the Annual Confidential Report of the petitioner for the period from 01.04.2006 to 23.03.2007 and 01.04.2007 to 12.12.2007, are hereby quashed and set aside. The respondents are directed to consider the case of the petitioner for promotion to the post of Executive Engineer for the said period, in accordance with law. 11. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.