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2024 DIGILAW 241 (GUJ)

Meeta Desai v. State Of Gujarat Thro Secretary

2024-02-02

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition, under Articles 14, 16 and 226 of the Constitution of India, the petitioner has challenged inaction on the part of the respondents and prayed, inter alia, that :- "A) Quashing and setting aside the memo dt.30.1.2012 and directing the Respondents to reconsider the case of the petitioner for grant of second higher grade scale w.e.f 7.2.2004 and every year thereafter till the year 2007 by applying the criterion as explained in this petition, and to pay the arrears with 10% interest. B) During the pendency and final disposal of this petition, Respondent No.2 may be directed to reconsider the case of the petitioner for higher grade scale from 7.2.2004 by applying correct criterion. C) To grant such and further relief as may be deemed fit and proper." 2. The facts giving rise to present petition are that the petitioner was serving as 'Head Clerk' in the office of respondent No 4. The petitioner was appointed as 'Junior Clerk' on 21.12.1979 and then promoted as 'Senior Clerk' on 4.6.2003. The petitioner was given the deemed date of promotion of Senior Clerk as 8.11.1992. Lastly the petitioner was promoted to the post of 'Head Clerk' on 7.12.2010. The petitioner was granted the first higher grade scale from 7.2.1989 as per the Government Resolutions dated 5.7.1991 and 16.8.1994. 2.1 As per Government Resolution dated 2.7.2007, the petitioner became eligible for second higher grade scale from 7.2.2004, i.e. after completion of 15 years after grant of first higher grade scale. However, by the order dated 20.2.2010, the petitioner was granted the second higher grade scale from 1.4.2007. 2.2 By the letter dated 14.2.2011 the petitioner had requested Respondent No.2 to grant her the second higher grade scale from 7.2.2004. However, by the memo dated 30.1.2012, the petitioner was informed that the Departmental Promotion Committee had decided to grant the second higher grade scale from 1.4.2007 taking into consideration the Annual Confidential Report of the petitioner. 2.3 It is true that there was an adverse remark in the A.C.R of the petitioner for the year 2001-2002 to the effect that she was "irregular in attendance ". The said adverse remark was communicated to the petitioner but she has lost the same. She did not make any representation against that adverse remark within the prescribed time limit. 2.3 It is true that there was an adverse remark in the A.C.R of the petitioner for the year 2001-2002 to the effect that she was "irregular in attendance ". The said adverse remark was communicated to the petitioner but she has lost the same. She did not make any representation against that adverse remark within the prescribed time limit. On coming to know that the petitioner has not been granted the second higher grade scale from the due date on account of the above adverse remark in the Annual Confidential Report, by the letter dated 20.2.2010 she requested for a copy of the adverse remark for the period from 1.4.2001 to 31.3.2002 under the R.T.I Act. 2.4 By the letter dated 11.3.2010, the said information was refused. As stated above, the petitioner has lost the letter communicating the adverse remark. The adverse remark has been confirmed by the respondent no.2 as stated in the order dated 29.6.2009. Against the above order dated 25.11.2008, the petitioner made the representation dated 8.12.2008, but nothing was heard in the matter. 2.5 In view of the above, by this petition, the petitioner has challenged the memo dated 30.1.2012 as being illegal, arbitrary, unreasonable and in violation of Articles 14 and 16 of the Constitution of India. 3. Heard Mr. Abhisst Thaker, learned Counsel for the petitioner and Mr. Aditya Jadeja, learned Assistant Government Pleader for the respondents. 4. Mr. Abhisst Thaker, learned Counsel for the petitioner has relied upon an additional affidavit-in-rejoinder filed by the petitioner and reiterated the averments made in the petition and submitted that the adverse entry was posted for the years 2001 to 2002, however, considering the last five year's remarks in the service book, she was promoted in the year 2003 by the department and also granted the benefit from the deemed date, for which she is entitled and once she received the promotion for the higher post i.e. "Senior Clerk" the adverse entry posted in the service book, may not come in the way of the petitioner to consider for the second higher grade pay scale, for which she is entitled to. Mr. Mr. Abhisst Thaker, learned Counsel for the petitioner has submitted that though she is entitled for the second higher pay scale from 7.2.2004 instead of that the department has considered the benefits from 1.4.2007 i.e. after three years from the eligibility and therefore, the petitioner was deprived by not considering the higher grade pay scale for three years and for the said inaction on the part of the respondents, she has incurred a huge loss. 4.1 Mr. Abhisst Thaker, learned Counsel for the petitioner has further submitted that the petitioner is now retired from the service and therefore, she is further incurred loss in pension also because, it was calculated on the basis of the second higher grade pay scale, considering from 2007 instead 2004 and therefore, the adverse remarks considered by the authority is bad in law and against the settled principles of law and the same cannot be considered. Mr. Abhisst Thaker, learned Counsel for the petitioner has submitted that once the department has considered the petitioner for the promotion, after appraisal of the adverse entry and that therefore, the adverse entry is no more further remained, as an adverse entry. 4.2 In support of his submission, learned counsel for the petitioner has referred to and relied upon the decision of the Hon'ble Apex Court in the case of Baikunthnath Das and another vs. chief District Medical Officer Baripada and another reported in (1992) 2 SCC 299 , more particularly he has relied upon the following observation:- "32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R.56(j) need not be held back. There is reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. 4.5 Mr. Abhisst Thaker, learned Counsel for the petitioner has also relied upon the decision of the Hon'ble Apex Court in case of J.D. Srivastava vs. State of M.P. and others reported in (1984) 2 SCC 8 , more particularly he has relied upon the following paragraphs:- "7. The Confidential Reports in respect of the appellant are placed before us. lt is stated by the Registrar of the High Court in Para 13 of the counter affidavit that the appellants performance for 28 years was taken into consideration for screening under Fundamental Rule 56(3), The High Court has relied on some adverse remarks relating to 1959-60 or thereabouts, lt is true that in the early part of his career, the entries made do not appear to be quite satisfactory. They are of varied kinds. Some are good, some are-not good and some are of a mixed kind. They are of varied kinds. Some are good, some are-not good and some are of a mixed kind. But being reports relating to a remote period, they are not quite relevant for the purpose of determining whether he should be retired compulsorily or not in the year ]981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer. We therefore, confined our scrutiny to the reports made in respect of the appellant for about ten years prior to the date on which action was taken against him to retire him compulsorily. We find that all of them except for 1972-73 and 1973-74 are good and quite satisfactory. Even in 1972-73 and 1973-74 it is stated that there was nothing to doubt his integrity and that he was punctual in attending it to his work. It may be noted, that the appellant was promoted as an Additional District & Sessions Judge on January 8, 1974 and was also confirmed with effect from November 25, 1974 by an order passed in 1976. Any adverse report in respect of an earlier period unless it had some connection with any event which took place subsequently cannot, therefore, reasonably form a basis for forming an opinion about the work of the appellant. We give below a few relevant extracts from the Confidential Reports for the period subsequent to March 31, 1974. Year : 1975 On confidential enquiries from the members of the Bar and from other sources nothing was found against him in respect of his integrity. During surprise check he was found on the board in time. Enquiries from other sources also disclosed that he usually comes in time and does not rise early and engages himself in judicial work. This impression was gathered from judicial diary also. After scrutiny of the cases, the following impression was gathered. Knowledge about rules and orders, law and procedure is adequate but the number of the interlocutory application is sometimes not entered in the margin of the connected order-sheet in red ink. Judgments are good with proper discussion of evidence. Interlocutory matters are not kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed. Punishments were adequate. Examination of accused is proper. Charges framed are proper.- Record is legible Control and supervision over the staff is satisfactory. Judgments are good with proper discussion of evidence. Interlocutory matters are not kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed. Punishments were adequate. Examination of accused is proper. Charges framed are proper.- Record is legible Control and supervision over the staff is satisfactory. Judicial diary calls for no particular comments. His relations with the Bar are cordial, with no complaints of any misbehavior with any litigants His average disposal during the period in question was of very good category. There is nothing else to comment in particular. Year : 1976 Knowledge of law and judicial capacity:- Good Remarks about his promptness in the disposal of cases:- Promptness satisfactory Remarks about reputation of integrity and impartiality:- Nothing was found against his integrity or impartiality. General Remarks: He was mostly punctual and did not rise early. Judgments were proper and contained the required discussion of evidence Charges and examination of accused and issues were proper. Promptness in framing of issues was marked in recent months. Control and super vision over the staff was satisfactory. Settling dates should not normally be of more than two weeks as was notice in certain cases. Interlocutory matters were generally not kept unduly pending. Net Result: Good Year 1976-77 Knowledge of Law and Judicial capacity: Satisfactory Remarks about his promptness in the disposal of cases: Generally prompt Percentage of average monthly disposal:- 148. 1/2,% Behaviour towards members of the Bar and Public:- Cordial General Remarks: Satisfactorily managing heavy and exclusive civil file. Mostly punctual. Net Result: Good Year 1977-78 Knowledge of Law and Judicial capacity:- Good Entry against almost all the columns in the Report- Good General Remark:- Has good grasp of facts and law. Judgments in proper form and well written. Net Results:- Good Year 1979-80 (a) Shri Shrivastava begins his judicial work punctually at 11.00 a.m. and works throughout the Court hours. So far, it appears that he has arranged his Cause List judiciously fixing civil work for the day. This Judge understands that there can be no subsequent pleadings except by way of amendment of pleadings. In other words, he understands the purport of order 8 rule 9 and order 6 rule 7 of the Civil Procedure Code. He also understands what is pleading i e. Order 6 rule 1 of the Civil Procedure Code as compared with oral statement. In other words, he understands the purport of order 8 rule 9 and order 6 rule 7 of the Civil Procedure Code. He also understands what is pleading i e. Order 6 rule 1 of the Civil Procedure Code as compared with oral statement. He so far appears to be equally conversant with order 17 rule I of the Civil Procedure Code i.e. adjournment is only granted for sufficient cause. He does no. find any difficulty in applying law relating to pleadings and interlocutory matters. So far, his procedure conforms to rules or pleadings, filing of documents, framing of issues and recording of evidence. (b) So far, on the criminal side, he frames charges with care, records evidence with such care and prepares examination of accused with equal care. (c) So far, he makes a neat and legible record. He generally supervises the work of ministerial staff. (d) His judgments, both on civil and criminal, so far, appear to be well written. He is prompt in his disposals including doing work therein. His work, as a whole, so far, has been found to be of high quality. He also takes up civil work. His relations with the Bar, so far, appear to be cordial. (e) The above remarks are subject to the D.O. No. 462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court. (Note: The Memo. sent to the appellant in March, 1980 Only informed him of two remarks-(1) that the did not dispose of Sessions trials quickly and (2) that he did not follow the amended provisions under order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that the appellant did not write judgments in civil appeals according to the pattern prescribed; that Sessions trials were not conducted quickly and that (he) granted unduly long adjournments of about a month or so for examination of accused and defence witnesses. The appellant sent a prompt reply to it oil March 28, 1980 refuting the correctness of the above remarks. We have gone through the said reply. On going through the facts mentioned therein, we feel that the remarks against him appear to be totally uncharitable. It shows that the appellant has disposed of more number of cases than what ordinarily could be disposed of during the relevant period. We are not informed of what action was taken on his prayer for expunging the said remarks). On going through the facts mentioned therein, we feel that the remarks against him appear to be totally uncharitable. It shows that the appellant has disposed of more number of cases than what ordinarily could be disposed of during the relevant period. We are not informed of what action was taken on his prayer for expunging the said remarks). Year: 1980-81 His out turn-during the year was about 200 percent. The quality of work may be classed as good. 'B' category. No specific complaints were received against him about his behaviour or integrity." 4.6 Mr. Abhisst Thaker, learned Counsel for the petitioner has also relied upon the decision of this Court in case of M.U. Shaikh vs. The Director of Employment and Training decided by this Court on 2.5.1996, more particularly he has relied upon following observations:- petitioner sh "5. The adverse entry for the year 1976-77 was communicated to the petitioner on 20th March. 1978. i.e.. nearly after 47 weeks, instead of six weeks, from the completion of the confidential reports for the relevant period. The adverse remarks for the period 9-6-1977 to 16-1-1978 were communicated to him on 19-4-1979, i.e., nearly 50 weeks after the completion of the confidential reports for the said period. According to the petitioner, he had not received the communication dated 19-4-1979 and, therefore, the adverse remarks were communicated to him on 17-3-1982 and if that date is to be reckoned, then, the remarks were communicated 184 weeks after the completion of the confidential reports for the relevant period. There is no dispute about the fact that the adverse remarks were required to be communicated within six weeks after the completion of the confidential reports for the relevant period for which they are written. It has been held by the Supreme Court in State of Haryana v. P.C. Wadhwa MANU/SC/0708/1987 : (1987) ILLJ 529 SC that the whole object of making and communicating adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. The provisions relating to communication of adverse entries, although directory in nature, is required to be complied with substantially. A directory provision cannot altogether be ignored. The provisions relating to communication of adverse entries, although directory in nature, is required to be complied with substantially. A directory provision cannot altogether be ignored. In P.C. Wadhwa's case (supra), the Supreme Court held that if the circular provided a total period of seven months as the maximum period, within which adverse remarks, if any, had to be communicated to the officer concerned, and if they were actually communicated after 27 months, i.e., after about four times the period prescribed under the Rules, there was unreasonable delay in communicating the remarks and, therefore, there was no substantial compliance with the provisions of the Rules, which require remarks to be communicated. In C.N. Chavda v. D.G.P. reported in 1992(1) GLH 209 , relying upon the decision in P.C. Wadhwa's case, this High Court held that the adverse remarks communicated more than 13 months after the relevant period was over, was grossly delayed. Delay of four times was held to be unreasonable in P.C. Wadhwa's case. Therefore, so far as the adverse remarks for the year 1976-77 and for the period 9-6-1977 to 15-1-1978 are concerned, the communications having been unduly delayed, they could not have been relied upon by the concerned authority in the instant case for the purpose of withholding the petitioner's increments at the stage of crossing of the Efficiency Bar with effect from 1st January, 1978. 6. Thus, the basis on which the petitioner's increments have been stopped at the Efficiency Bar with effect from 1-1-1978 is, therefore, wholly, erroneous and the Tribunal failed to notice this important aspect of the matter while proceeding on a erroneous basis that the question regarding Efficiency Bar of the petitioner was decided by the Tribunal on merits in Appeal No. 372 of 1979. Under these circumstances, the Tribunal's decisions in Appeal No. 388 of 1988 and Review Application No. 3 of 1990 cannot be sustained and are hereby set aside. The respondent is directed to consider the question of release of Efficiency Bar to the petitioner with effect from 1-1-1978 afresh and in the light of the observations made in this judgment, ignoring the adverse entries, which were mentioned in the show cause notice dated12-11-1981, on the basis of which the petitioner was denied the benefit of further increments beyond the Efficiency Bar. The decision shall be taken by the respondent within four weeks from the date of the receipt of the writ of this order and all the consequential benefits, in the event of the petitioner's Efficiency Bar being released from 1-1-1978 will be given to him within four weeks of the making of the order, releasing the Efficiency Bar from 1-1-1978 Rule is made absolute accordingly, with no order as to costs." 5. As against the same, Mr. Aditya Jadeja, learned Assistant Pleader for the respondents has strongly objected present petition and stick to the averments made in the affidavit-in-reply however, he has fairly conceded that the petitioner was granted promotion in 2003, though the adverse entry was posted in 2001- 2002. 5.1 Mr. Aditya Jadeja, learned Assistant Pleader for the respondents has also submitted that after considering the adverse entry, the petitioner was promoted in 2003 and granted benefit of deemed date and it is also an undisputed fact from the record that for almost 6 1/2 years, the assessing officer has not affirmed this adverse entry and for this gross delay, the authority has no any explanation. 5.2 Mr. Jadeja, learned Assistant Government Pleader for the respondents has submitted that though the adverse remarks posted in the service record is already communicated to the petitioner well within time by written intimation and the same was also received by the petitioner, the petitioner has not made any representation against the said adverse remarks to the assessing authority and therefore, he cannot claim that the decision of the assessing authority is bad in law and the assessing authority has rightly took the decision and there is no any illegality or arbitrariness on the part of the respondents by denying second higher grade pay scale to the petitioner. 5.3 Learned Counsel for the respondents has relied upon Rule 84 of Gujarat Police Manual, which reads as under:- "Rule 84: Principles governing Appointments and Promotions:- (1) The following principles, subject to general orders of Government issued from time to time, should be observed in connection with the promotion of officers from a lower to a higher grade, service or post by selection:- (a) No officer should be so promoted unless his record shows that he possesses the necessary positive qualifications for the higher grade, service or post such as personality, professional qualifications, initiatives, strength of character and readiness to responsibility. assume individual responsibility; (b) No officer who has the positive qualifications referred to in (a) above, should be passed over by an officer junior to him unless the latter, has in addition, really exceptional qualifications; and (c) In assessing merit of officers on comparative basis for the purpose of principles (a) and (b) above, the ability, energy, initiative, integrity etc. of the officers concerned should be taken into consideration over a series of years wherever possible and the judgment should be formed after carefully considering reports of at superior officers. (d) The application of these principles will be subject to any special orders which Government may pass in regard to any special services. The above cases shall not apply in the cases of promotions to such key posts the as Heads of Departments, where Government's discretion is absolute." 5.4. Learned Counsel for the respondents has relied upon circular dated 31.3.1989, more particularly clause 11 and submitted that present petition may not be entertained and the same may be dismissed. 6. I have perused the material placed on record along with the relevant papers. I have also considered the submissions made on behalf of respective parties. The issue involved in present petition is that when the petitioner was already promoted to higher post then the adverse entry posted in the service record can be considered for the further higher grade pay scale, which was prior to the date of petitioner's promotion. 7. In my view, the law is settled on that aspect, more particularly in the decision of Baikuntha Nath Das (supra) the Hon'ble Apex Court has in paragraph No. 34, considered certain principles which read under:- "34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible only on the grounds mentioned in (iii) above............" 8. The Hon'ble Apex Court has held that once the employee is promoted on the higher post then the earlier adverse entry may not come in the way of the employee to get the higher grade pay scale, though the adverse entry posted prior in point of time. Further, there was an adverse remark in the A.C.R of the petitioner for the year 2001-2002 to the effect that she was "irregular in attendance" and for consideration of promotion in the higher grade in case of employee, last five year's A.C.R. needs to be taken into account. Therefore, the irregularity in attendance in respect of one year out of five years would not make the petitioner unfit for promotion to higher grade pay scale. Therefore, the irregularity in attendance in respect of one year out of five years would not make the petitioner unfit for promotion to higher grade pay scale. Further, the adverse entry was posted for the years 2001-2002, however, considering the last five year's remarks in the service book, she was promoted in the year 2003 by the department and also granted the benefit from the deemed date and therefore the petitioner is entitled to get second higher pay scale. In the facts of the present case, the circular dated 31.3.1989, more particularly clause 11 relied upon by learned Counsel for the respondents does not help the respondents in present case. 9. In view of the aforesaid discussions and in view of the decisions of the Hon'ble Apex Court, I am of the opinion that the petition deserves consideration and requires to be allowed and the impugned inaction of the respondents need to be quashed and set aside. 10. With aforesaid observations, the petition is hereby allowed. The memo dated 30.1.2012 is hereby quashed and set aside. Rule is made absolute. 11. The respondents are hereby directed to grant benefits in favour of the petitioner by considering the case of the petitioner from 2004 instead of 2007 and after recalculating the same, grant all the consequential benefits including pension within period of 3 months from the date of receipt of the copy of the order. Direct service is permitted.