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2016 DIGILAW 417 (GUJ)

R. N. Pandy v. State of Gujarat

2016-02-22

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition, petitioner has prayed that the adverse remarks for the year 1995-1996 and 1997 made in the confidential record of the petitioner be quashed and set aside. 2. Factual matrix of the present case is as under: "2.1. The petitioner was serving with the respondent since 1990 and he came to be appointed as District Inspector of Land Record with effect from 1990. Thereafter he was working as City Survey Superintendent, Mehsana at the time of filing of the petition. Adverse entries were made in the confidential report of the petitioner for the year 1995-1996. It was alleged that under the influence of others, writing of the petitioner was misleading and prejudicial. It is further alleged that though petitioner was capable of taking speedy decision but the decisions were contrary to rules and regulations and he was doing work without jurisdiction. Said remarks are produced on page 18 of the compilation. 2.2. The aforesaid adverse remarks made in the confidential record of the petitioner for the year 1995-1996 were communicated to the petitioner by a letter dated 12.06.2001 by the respondent authority. Petitioner, therefore, preferred an appeal against the said remarks. However, respondent has not given any reply to the said appeal. Hence, representation was made on 06.11.2001 by the petitioner. 2.3. By communication dated 09.01.2002 the concerned respondents informed the petitioner about the adverse remarks made in his confidential record for the period between 22.04.1997 to 03.10.1997. The said adverse remarks are produced at Annexure-C collectively with the compilation. Against the said remarks also petitioner preferred an appeal before the concerned respondent authorities. However, the said appeal is not considered." 3. Heard learned advocate Mr. Pinakin M. Raval for the petitioner and learned AGP Mr. Swapneshwar Goutam for the respondents. 4. Learned advocate Mr. Raval appearing for the petitioner mainly contended that as per the Circular dated 11.12.1996, the State Government issued guidelines for informing the adverse remarks to the concerned employee. The said circular is produced at Annexure-A with the compilation. As per the aforesaid Circular, if there is any adverse remark against the employee, the same is required to be communicated to him within a period of six weeks. The said circular is produced at Annexure-A with the compilation. As per the aforesaid Circular, if there is any adverse remark against the employee, the same is required to be communicated to him within a period of six weeks. In the present case the concerned respondents informed the petitioner about the adverse remarks after a period of more than 4 to 5 years and therefore on the ground of delay caused in communicating the adverse remarks to the petitioner such remarks are required to be quashed and set aside. It is further contended by learned advocate the aforesaid so-called adverse remarks were communicated after a period of more than 4 to 5 years only with a view to harass the petitioner and not giving promotion to the petitioner and/or not giving benefit of higher grade scale to the petitioner. In the year 2001-2002 petitioner was eligible for promotion/higher grade scale and therefore at that stage such adverse remarks were communicated. Thus, in the facts of the present case such remarks are required to be quashed and set aside. It is contended that so far as appeal which was filed by the petitioner against the adverse remarks for the year 1998-1999 is concerned, petitioner was informed that as per the representation made by the petitioner in the appeal some of the adverse remarks were deleted/cancelled. Thus, in the facts and circumstances of the present case, petition be allowed and prayer made in the petition be granted. 5. Learned advocate Mr. Raval has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court as well as this Court: "(1) the decision of this Court in the case of C.N. Chavda v. Director General of Police, reported in 1992 (1) GLH 209 . (2) the decision of this Court in the case of I.H. Mehta v. State of Gujarat & Anr., reported in 2001(2) G.L.R. 1305 . (3) the decision of this Court rendered in Special Civil Application No. 6068 of 1995 dated 12th January 1996. (4) the decision of Hon'ble Supreme Court in the case of Sukhdev Singh v. Union of India and Ors., reported in (2013) 9 SCC 566 ." 6. On the other hand, learned AGP Mr. (3) the decision of this Court rendered in Special Civil Application No. 6068 of 1995 dated 12th January 1996. (4) the decision of Hon'ble Supreme Court in the case of Sukhdev Singh v. Union of India and Ors., reported in (2013) 9 SCC 566 ." 6. On the other hand, learned AGP Mr. Goutam submitted that Circulars dated 11.12.1996 and 13.08.1998 issued by the Government provide that the adverse remarks are to be communicated within six weeks but there is no clarification that if the delay is caused what is to be done. In the present case the delay has been caused because of the administrative reason and there was no mala fide intention on the part of the respondent authority. As per paragraph Nos. 3 and 4 of circular dated 13.08.1998, if the adverse remarks are not communicated and when it comes to the notice of the authority, such adverse remarks should thereafter be communicated. Learned AGP therefore contended that merely because there is delay in communicating adverse remarks to the petitioner on such ground adverse remarks may not be quashed and therefore this petition be dismissed. 7. Learned AGP has placed reliance upon the following decisions: "(1) the decision of Allahabad High Court in the case Prem Chand Azad S/o Late Saheb Ram, Addl. District Judge v. The Hon'ble Chief Justice, High Court of Judicature at Allahabad High Court of Judicature at Allahabad through its Registrar General and State of Utter Pradesh through its Principal Secretary (Appointments), reported in 2006 (10) ADJ 328 (2) the decision of Rajasthan High Court in the case of Bhagwan Sahai Pareva v. Rajasthan High Court, Jodhpur & Ors. rendered in D.B. Civil Writ Petition No. 6732 of 2003 dated 16.09.2015." 8. I have considered the submissions canvassed on behalf of learned advocates for the parties. I have also gone through the material produced on record and the decisions relied upon by the learned advocates appearing for the parties. The only question which is required to be decided in the present proceedings is if there is delay in communicating the adverse remarks to the employee, whether such remarks can be taken into consideration at the time of granting promotion or granting higher pay-scale. 9. In the case of C.N. Chavda (supra) this Court observed and held in paragraph Nos. 10 and 11 as under: "10. 9. In the case of C.N. Chavda (supra) this Court observed and held in paragraph Nos. 10 and 11 as under: "10. However, so far as the last contention is concerned, it requires to be upheld. As stated hereinbefore, the adverse entries have been made in the Confidential Reports of the petitioner for a period between October 13, 1986 and March 31, 1987. The said adverse remarks were communicated to the petitioner on May 21, 1988, i.e. after about thirteen months which were received by the petitioner on May 24, 1988. As per the Government Circulars issued from time to time, such adverse entries were required to be communicated to the government servants as expeditiously as possible so as to enable them to make representation against those adverse remarks. Even in counter affidavit filed by the respondents, it is stated in paragraph 14 that normally adverse remarks should be communicated within a period of six weeks as per Government Circular dated January 29, 1987. In the instant case, however, the communication was made after more than thirteen months. The question is, whether such a belated communication of adverse remarks would be proper and in accordance with law. A similar question arose before the Hon'ble Supreme Court in case of State of Haryana v. P.C. Wadhwa, reported in AIR 1987 SC, page 1201. In that case, adverse remarks were communicated to the petitioner after about twenty seven months. As per the circular and policy decision of the Government, such remarks were required to be communicated to the employees concerned within a period of seven months. Since it was not done, the petitioner approached the Court and upholding the contention of the petitioner that there was inordinate delay, in communication of adverse remarks, the Supreme Court observed as under: "The whole object of the making and communication of adverse remark is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. 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. 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 may not be complied with even 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." (Emphasis supplied.) Thus, according to the Hon'ble Supreme Court, the provision relating to communication of adverse entries, though directory in nature is required to be complied with substantially. The Supreme Court drew distinction between a mandatory provision and a directory provision. As per settled principle of law, if a provision is mandatory in nature, it requires to be complied with strictly and exactly. If, on the other hand, the provision is directory in nature, it is not necessary that it must be exactly complied with provided it is complied with substantially. Thus, the distinction is of degree only. Even if the provision is directory, it cannot be altogether ignored. In Wadhwa's case (supra), adverse remarks, as per the rules framed by the Government, were required to be complied with substantially, since rules, in the opinion of the Supreme Court, were directory in nature. All the same, the Supreme Court held that if the adverse remarks were required to be communicated within a period of seven months and if they were actually communicated after twenty-seven months (i.e. about four times the period prescribed under the Rules), the delay could be said to be unreasonable and it could not be contended that the provision had been complied with even substantially. 11. In the instant case, in my opinion, the ratio laid down by the Hon'ble Supreme Court in case of P.C. Wadhwa (supra), applies with equal force. As per the Government Circulars issued and policy decisions taken from time to time, adverse remarks are required to be communicated to an employee within a period of six weeks. My attention was invited by Mr. As per the Government Circulars issued and policy decisions taken from time to time, adverse remarks are required to be communicated to an employee within a period of six weeks. My attention was invited by Mr. Panchal, the learned Assistant Government Pleader to the latest circular issued by the General Administrative Department on March 31, 1989 wherein more than 50 earlier circulars were considered by the State Government and even in that circular, it is specifically provided that adverse remarks are required to be communicated to an employee within a period of six weeks from the completion of the adverse remarks. It is further provided that if any employee is aggrieved by the said remarks, he may make a representation within a period of six weeks from the receipt of those adverse remarks. The next sentence is material and in Gujarati, it reads as under: xxxxx Translated into English, it states that if the competent authority is satisfied that there are sufficient and reasonable grounds for not making representation, within the stipulated period of six weeks, it may extend the said period considering the merits of the case. Thus, the duty is cast on the authority to communicate adverse entries to an employee concerned so as to enable him to make representation to the reviewing authority in accordance with law. If a representation is made after a period of six weeks from the date of communication of adverse remarks, the employee is required to show sufficient ground and/or reasons for the delay. By necessary corollary, if the authority does not communicate adverse remarks within the stipulated period of six weeks, it also must show sufficient grounds and/or reasons for such delay. I am not oblivious of the fact that this is a directory provision and that delay of each and every day need not be explained with mathematical precision. But, then, the underlying object as laid down by the Honourable Supreme Court in P.C. Wadhwa's case (supra) also must be borne in mind. Therefore, there may be delay in the part of the authority in not communicating adverse remarks to an employee. If there are sufficient reasons for delay, such act may not be interfered by the Court but those reasons must be brought to the notice of the Court when such an action is challenged and the Court must be satisfied. Therefore, there may be delay in the part of the authority in not communicating adverse remarks to an employee. If there are sufficient reasons for delay, such act may not be interfered by the Court but those reasons must be brought to the notice of the Court when such an action is challenged and the Court must be satisfied. As stated hereinbefore, in the instant case, the adverse remarks are for the period between October 13, 1986 and March 31, 1987 and they were communicated for the first time in May 1988, that is after more than thirteen months. Apart from satisfactory or sufficient reasons, no ground whatsoever has been put forward by the respondent authorities even though an affidavit in reply is filed. In my opinion, therefore, the contention of Mr. Shah that the communication of adverse remarks was grossly delayed and that those remarks cannot be considered must be accepted. In P.C. Wadhwa's case (supra), the Hon'ble Supreme Court held that if the delay was four times it could not be said to be reasonable. In the instant case, the delay is much more and therefore, following the ratio laid down in P.C. Wadhwa's case (supra), I allow the petition by directing the authorities not to consider the adverse entries in the Confidential Reports of the petitioner between October 13, 1986 and March 31, 1987 and to ignore those adverse entries. Rule is accordingly made absolute with no order as to costs." 9.1. In the case of I.H. Mehta (supra), this Court has observed and held in para 8 and 9 as under: "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." 9.2. In the case of Sukhdev Singh (supra), the Hon'ble Supreme Court in para 8 observed and held as under: "8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. In the case of Sukhdev Singh (supra), the Hon'ble Supreme Court in para 8 observed and held as under: "8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good -must be communicated to him/her within a reasonable period." 10. Keeping in mind the aforesaid decisions rendered by this Court as well as the Hon'ble Supreme Court, if the facts of the present case are considered, it can be said that the respondent authority has communicated the adverse remarks of the petitioner for the year 1995-1996 after a period of more than 6 years i.e. in June 2001. Similarly, for the subsequent period of 1997-1998 and 1999 such remarks were communicated in the year 2002. Thus, there is a gross delay in communicating the adverse remarks to the petitioner. The respondent authority has admitted this aspect in the affidavit that there was a delay in communicating the said remarks. However, they have tried to justify the said delay by saying that it was administrative delay. It is further admitted in the affidavit that when Departmental Promotion Committee met, at that time, it came to the notice that adverse remarks in the confidential record of the petitioner were not communicated to him. Thus, at the time of considering the promotion/higher grade-scale of petitioner adverse remarks were communicated. Thus, in the facts of the present case when there is a gross delay in communication of the adverse remarks, such remarks are required to be ignored. Thus, at the time of considering the promotion/higher grade-scale of petitioner adverse remarks were communicated. Thus, in the facts of the present case when there is a gross delay in communication of the adverse remarks, such remarks are required to be ignored. The Hon'ble Supreme Court in the aforesaid decision of Sukhdev Singh (supra) held that adverse remarks are required to be communicated within reasonable time. This Court has also relying upon the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana v. P.C. Wadhwa, reported in AIR 1987 SC 1201 observed that if the delay was four times, it could not be said to be reasonable. In the present case, as per the circular of the Government the adverse remarks are required to be communicated within a period of six weeks. However, in the present case, as observed hereinabove, there was a gross delay in communicating the adverse remarks to the petitioner which is not satisfactorily explained by the respondent and therefore such remarks are required to be ignored. 11. The decisions on which the reliance is placed by the learned AGP are not applicable to the facts of the present case. This Court is aware that the scope of judicial review in case of adverse remarks is limited. However, in view of the aforesaid decisions rendered by this Court as well as Hon'ble Supreme Court relied upon by the learned advocate for the petitioner, when there is an admitted fact that there is a gross delay in communicating the adverse remarks to the petitioner, the decisions relied upon by learned AGP would not be helpful to him. 12. In view of the aforesaid discussion, petition is allowed and the respondent authorities are directed not to consider the adverse entries in the confidential reports of the petitioner for the year 1995-1996 and 1997 and to ignore those adverse entries. Rule is made absolute.