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2016 DIGILAW 1739 (GUJ)

A. D. Chauhan v. State of Gujarat

2016-08-12

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. In this petition under Article-226 of the Constitution of India, a challenge has been made to the order dated 10.06.2008, passed by respondent No. 2, whereby the adverse remarks in the Annual Confidential Report (ACR) of the petitioner for the period between 01.04.2006 to 31.03.2007 have been communicated to him belatedly after a period of fifteen months, the order dated 21.04.2009, rejecting the representation of the petitioner and confirming the adverse remarks and the order dated 26.04.2010, passed by respondent No. 2, rejecting the review application filed by the petitioner. The petitioner further prays that the adverse remarks be expunged from his service record. 2. Briefly stated, the relevant facts of the case are that the petitioner was selected and appointed as a Clerk in the year 1983, in the Cooperation Department of the State Government. He was promoted to the post of Senior Clerk in the year 1991 and has been working as Sub-Auditor under respondent No. 3-District Registrar, Cooperative Society (City). It is the case of the petitioner that he is due for promotion, for which purpose the ACRs of the petitioner for the last five years, from the year 2005 to 2010, would be considered by the respondent-authorities. On 10.06.2008, the petitioner received the impugned communication from respondent No. 2, indicating that there were adverse remarks in his ACR for the period of 01.04.2006 to 31.03.2007. On receipt of the said communication, the petitioner made a representation to respondent No. 2 for the expunction of the adverse remarks on the ground that they had not been communicated within the stipulated period of time. The representation was rejected and the adverse remarks were entered in the service record of the petitioner by the impugned order dated 21.04.2009, passed by respondent No. 2. The review application preferred by the petitioner against the said order was also rejected by respondent No. 2. Aggrieved thereby, the petitioner is before this Court. 3. Mr. Dharmesh V. Shah, learned counsel for the petitioner, has submitted that it is a settled position of law that in the event there is delay in the communication of adverse remarks, the said remarks cannot be considered and are required to be expunged. Aggrieved thereby, the petitioner is before this Court. 3. Mr. Dharmesh V. Shah, learned counsel for the petitioner, has submitted that it is a settled position of law that in the event there is delay in the communication of adverse remarks, the said remarks cannot be considered and are required to be expunged. In the present case, the adverse remarks pertain to the year 2006-2007 and were communicated to the petitioner in the month of June, 2008, after a period of about fifteen months. That, the petitioner has put in more than twenty-seven years of service with the respondents and, therefore, is required to be considered for promotion. If not considered, he would face great hardship and stagnation in his career. 4. Learned counsel for the petitioner further submits that the case of the petitioner is covered by a judgment of this Court dated 25.07.2016, passed in Special Civil Application No. 7064/2011, wherein, in a similar case regarding the late communication of adverse remarks, the Court has directed that the said remarks be not considered and the concerned employee be considered for promotion. It is prayed that similar directions be issued in the present case, as well. 5. Mr. Niraj Ashar, learned Assistant Government Pleader submits that, the petitioner has not performed the audit work entrusted to him properly, therefore, the adverse remarks in his ACR are justified. It is further submitted that the record reveals that the petitioner has not regularly attended the Scrutiny meetings. 6. No other submissions have been advanced by learned counsel for the respective parties before the Court. Besides, no affidavit-in-reply has been filed by the respondents in the present case. 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, the contents of the impugned orders and other documents on record. 8. From a perusal of the impugned order dated 10.06.2008, it is evident that the adverse remarks for the period of 01.04.2006 to 31.03.2007, have been communicated to the petitioner only on 10.06.2008, after a period of fifteen months. The State Government has issued a Circular dated 01.05.2004, in which it is indicated that an adverse entry is to be communicated to the concerned employee within a period of six weeks from the date of the assessment by the Reviewing Officer. The State Government has issued a Circular dated 01.05.2004, in which it is indicated that an adverse entry is to be communicated to the concerned employee within a period of six weeks from the date of the assessment by the Reviewing Officer. Thereafter, a period of six weeks is required to be given to the employee to make a representation. The concerned authority would then decide the representation, within a period of three months. In the present case, the adverse remarks have been communicated much later than the stipulated period of six weeks, as contemplated in the above-mentioned Circular. 9. The position of law in this regard is now settled. The issue has been discussed at length in the judgment dated 25.07.2016, passed by this Court in Special Civil Application No. 7064/2011. The relevant extract of the judgment is reproduced below: "7. In Special Civil Application No. 252 of 2009 (B.M. Rajvanshi v. 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 v. 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 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. 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 v. State of Gujarat (supra), this Court, after taking into consideration the judgment in the case of State of Haryana v. 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 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. 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. 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. 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 v. State of Gujarat And Anr. 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 v. 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 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.*****" 10. The case of the petitioner would be squarely covered by the principles of law enunciated by the Supreme Court as quoted in the above judgment of this Court, as reproduced above. 11. This position of law is not disputed by the respondents. 12. Hence, in view of the above legal and factual position, the following order is passed: "The adverse remarks recorded in the Annual Confidential Report of the petitioner for the period from 01.04.2006 to 31.03.2007, are expunged. 11. This position of law is not disputed by the respondents. 12. Hence, in view of the above legal and factual position, the following order is passed: "The adverse remarks recorded in the Annual Confidential Report of the petitioner for the period from 01.04.2006 to 31.03.2007, are expunged. The respondents are directed to consider the case of the petitioner for promotion to the next promotional post, in accordance with law." 13. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.