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2025 DIGILAW 691 (GUJ)

Harshjit Gohil v. State Of Gujarat

2025-07-08

NIKHIL S.KARIEL

body2025
JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned advocate Mr. Vaibhav Goswami for the petitioner and learned AGP Ms. Tanushree Shrimal for the respondent No.1 – State. 2. By way of this petition, the petitioner challenges an order passed by the Chairman, District Appeal Committee and Ex-Officio the Collector, Ahmedabad, more particularly, whereby the Committee has confirmed the adverse remarks in the APAR of the petitioner for a period between 20.06.2022 to 31.03.2023. 3. It would appear that the present petitioner at the relevant point of time, was working as a Clerk in the Election Department on 02.12.2022 and was assigned 242-Vejalpur Vidhansabha Election Department under the Deputy Development Officer (Panchayat) respondent i.e. No.3 herein. It would appear that the Mamlatdar as a Reporting Officer and the respondent No.3 i.e. Deputy District Development Officer as being Reviewing Officer, had granted 38 marks out of 100 to the petitioner and whereas the reviewing authority has made certain adverse remarks against the petitioner in the remark section of the PAR. It appears that the petitioner was informed of the adverse entry in the Performance Appraisal Report of the petitioner by the Mamlatdar, Vejalpur, vide communication dated 14.07.2023. It appears that the petitioner had appealed there against to the Collector, Ahmedabad, on 20.07.2023 and whereas the petitioner had maintained a stand that the respondent Nos.3 and 4 during the tenure of the petitioner had not given any notice / warning / censure etc. to the petitioner, which would justify the Reporting Officer and Reviewing Officer giving so less marks to the petitioner and also making an adverse entry by the Reviewing Officer. to the petitioner, which would justify the Reporting Officer and Reviewing Officer giving so less marks to the petitioner and also making an adverse entry by the Reviewing Officer. It would appear that vide order dated 04.12.2023, the Collector, Ahmedabad, had considered the appeal preferred by the present petitioner and as regards the submissions of the petitioner that during the period in question, no written communication showing alleged inefficient work or alleged negligence in work, had been issued either by the Reporting Officer or Reviewing Officer, had called upon the Reporting Officer and Reviewing Officer to explain and whereas as could be noticed from the order in question, it would appear that the Reporting Officer and Reviewing Officer had taken a stand that though the petitioner had been repeatedly warned orally and though the Reviewing Officer had directed the Reporting Officer to issue a warning to the petitioner, yet on account of burden of work, the same had not been issued. The Collector / the Committee having considered such explanation, had deemed it appropriate to confirm the grant of 38 marks as well as confirm the adverse entry. 4. It also appears that in the interregnum, show cause notices had been issued to the petitioner on 20.06.2023, 06.07.2023 and 28.07.2023 inter alia alleging lack of efficiency and negligence in carrying of his duties. It would be pertinent to mention that the notice dated 20.06.2023 was the main notice and whereas the notices dated 06.07.2023 and 28.07.2023 were just reminders calling upon the petitioner to submit appropriate reply to first show cause notice. 4.1 The petitioner being aggrieved by the inadequate marks given by the Reporting Officer confirmed by the Reviewing Officer as well as the adverse entry by the Reviewing Officer as confirmed by the Appellate Committee, has approached this Court. 5. Heard learned advocate Mr. Goswami for the petitioner, who would submit that the decision of the District Level Appeal Committee communicated through the Collector, was erroneous, since the Committee while noting that the Reporting or the Reviewing Officer had not issued any communication to the petitioner during the reported period informing the petitioner about alleged inefficient performance, yet they had confirmed the adverse entry as written by the Reviewing Officer. Learned advocate would submit that the justification given by the Reporting and the Reviewing Officer vide their common communication dated 11.08.2023 to the District Collector, clearly reveals that there was no material whatsoever with the Reporting and the Reviewing Officer to justify the grant of low marks as well as the adverse entry. 6. The learned advocate for the petitioner would further submit that the Reporting Officer had filled in the PAR on 07.06.2023, the Reviewing Officer had issued its notings on 11.07.2023 and whereas it is only between the interregnum period, more particularly after the Reporting Officer had written the PAR of the petitioner that the petitioner had been issued with show cause notices dated 20.06.2023, 06.07.2023 and 20.07.2023. It is submitted that the show cause notices were issued after the reporting period and whereas even the Reporting or Reviewing Officer have not relied upon the show cause notices in their reply to the Appellate Committee and hence, they would not have any material impact on the PAR. Thus submitting, the learned advocate would request this Court to interfere and pass appropriate order. 7. Learned AGP Ms. Tanushree Shrimal opposing the petition, has vehemently submitted that since the Reviewing Officer had concurred with the Reporting Officer, therefore, no error could be found by the Appeal Committee as regards either the giving of less marks or giving of the adverse entry. Learned AGP would further submit that as such, it is subjective satisfaction of the Reporting Officer and Reviewing Officer as regards the performance of the employee, which would be incorporated in PAR. Learned AGP would further submit that the District Level Appeal Committee had taken a decision after providing appropriate opportunity to the present petitioner. Learned AGP would submit that under such circumstances, this Court may not interfere with the impugned decision. 8. Having heard learned advocates for the respective parties, it would appear that on one hand before the Appellate Committee / Collector, while the Reporting and Reviewing Authorities had clearly admitted that during the period in question, no written instruction, communication, warning or censures had been issued upon the petitioner and whereas the Reporting Officer had gone to the extent of accepting that though the Reviewing Officer had directed the Reporting Officer to issue censure to the petitioner, yet on account of heavy work load, he had not issued such censure order. On the other hand, it also appears that after the PAR had been filled in by the Reporting Officer, there was an attempt to create some material against the petitioner by issuance of repeated show cause notices. It also appears that till now, the respondents have not issued any charge-sheet to the petitioner inspite of the petitioner having replied to the show cause notice at the very relevant point of time. Under such circumstances, to this Court, it would appear that there is no justification available with the respondents for having given 38 marks out of 100 to the petitioner and whereas there is no justification for the Reviewing Officer to have given the adverse entry to the present petitioner. 9. Furthermore, in so far as the low marks are concerned, it would appear that the Reporting Officer is required to give marks ranging from 0 to 5 for various attributes, the major attribute being work productivity of the employee, the attribute of the employee and the work efficiency of the employee. The total marks amounting 100, the petitioner having been given 1 to 2 marks of each of the attributes, totaling 38 marks out of 100. To this Court, it would appear that for justifying such low / below par marks are, the Reporting Officer was required to show that during the period of reporting, the employee concerned had been informed about his shortcoming and had inspite of opportunities given, not improved. 10. In so far as the Reviewing Officer is concerned, while the Reviewing Officer has agreed with the Reporting Officer, the Reviewing Officer has gone further and had issued an adverse entry that the petitioner was completely absent throughout the entire 2022 election. The Reviewing Officer also notes that any work given to the petitioner would always not be done. It is also observed that the petitioner is absent from his office and hardly responds to any call. The Reviewing Officer concludes by noting that the petitioner is totally unreliable and incompetent. To this Court, it would appear that to hold as above, the Reviewing Officer would require to justify as to what action the Reviewing Officer had taken during the reported period, if the petitioner was absent all throughout. The Reviewing Officer concludes by noting that the petitioner is totally unreliable and incompetent. To this Court, it would appear that to hold as above, the Reviewing Officer would require to justify as to what action the Reviewing Officer had taken during the reported period, if the petitioner was absent all throughout. To this Court, it would appear that the adverse remarks are completely misdirected and unjustified since no action whatsoever appears to have been taken against the petitioner for his absence etc. To clarify to this Court, it would appear that if the petitioner had been unauthorizedly absent, then appropriate action as regards the same was required to be taken, which does not appear to be the case here and whereas if the petitioner was on leave during the period, which had been sanctioned, then there is no justification to mention that the petitioner was absent. As it is, it is contended by the petitioner that he was on duty all throughout. Furthermore, if a subordinate employee is not doing the work assigned to him or his absent in the office or is an unreliable or incompetent officer, which aspect had been reflected in an adverse entry in the PAR of a subordinate, then upon any explanation for the adverse entry being sought for by the Accepting Authority – Appellate Authority, then the Reviewing Officer is required to justify the action, which the Reviewing Officer had taken including but not limited to issuance of notices / warnings / censures etc. In the instant case, nothing appears to be done at the end of the Reviewing Authority to justify the adverse entry. Thus, it would appear that the adverse entry against the petitioner also is unjustified. 11. In the instant case, nothing appears to be done at the end of the Reviewing Authority to justify the adverse entry. Thus, it would appear that the adverse entry against the petitioner also is unjustified. 11. In so far as submission made by the learned AGP is concerned, while the concept of concurrent findings, may not be of much consequence in matter of writing of Performance Appraisal Report and whereas to this Court, it would appear that the general principle in this regard, is that in case an adverse entry is entered in the APAR of an officer, more particularly when the adverse entry is with regard to inefficiency in performance of his duty, then the Reporting Authority / Reviewing Authority as the case may be, when called upon are required to justify the same by showing that during the reported period, the Reporting Officer and Reviewing Officer were aware about the situation that the petitioner was not performing his duties properly and whereas either the Reporting Officer or the Reviewing Officer had issued notices / warnings / censure to the Reporting Officer. The purpose of giving the notice / warning / censure being to ensure that the Reporting Officer was informed about his shortcoming during the reported period. To this Court, it would appear that in absence of any material against the petitioner in the above form during the reported period, it would not be open for the Reporting Officer or the Reviewing Officer to merely rely upon alleged oral warning given to the petitioner in support of giving very low marks in PAR as well as making the adverse entry in PAR. The submissions made by the learned AGP, therefore, cannot be countenanced. 12. Again, while it is not the case of the Reporting Officer or the Reviewing Officer before the Committee that the show cause notices justify the adverse entry, yet it would appear that the show cause notices may have been created just to create evidence in support of the adverse entry against the present petitioner. 12. Again, while it is not the case of the Reporting Officer or the Reviewing Officer before the Committee that the show cause notices justify the adverse entry, yet it would appear that the show cause notices may have been created just to create evidence in support of the adverse entry against the present petitioner. In any case, to this Court, it would appear that if the petitioner had been negligent in doing his duties at the relevant point of time, there would be some material in form of notice / warning / censure, relying upon which, it would have been perfectly justifiable for the respondents to have entered the adverse entry in the PAR of the present petitioner. In absence of any material and coupled with the fact that the notices issued to the petitioner are post the date of the filling up of the PAR form by the Reporting Officer, it would appear to this Court that the authority, more particularly the Collector as Chairman of the Appeal Committee had erred in not setting aside the adverse entry. 12.1 Furthermore, in so far as show cause notices issued, it would be pertinent to observe that the reported period was between 02.02.2022 to 31.03.2023. It would appear that while no notices had been issued for this period, approximately three months after the period in question, after informing the petitioner about adverse entry in his PAR, the Reporting Officer has issued show cause notice for the first time on 20.06.2023 inter alia alleging that the petitioner was inefficient / negligence in doing his duties. While it is informed that the petitioner had replied to such show cause notice, on 04.07.2023, it is informed that approximately one year from the date, the said show cause notice had not resulted in any charge-sheet being issued to the petitioner. 13. Having observed as such, it would be pertinent to mention here that by now, it is a well settled position that the object of filling up of the PAR of employee is considered to be an exercise for improving the efficiency of the employee. Filling up of PAR is not and cannot be treated as a fault finding / punitive exercise. Filling up of PAR is not and cannot be treated as a fault finding / punitive exercise. Furthermore, the object of undertaking the exercise of PAR is to ensure that the Department as employer, has a holistic information about the performance of an employee and whereas in case, there are any shortcomings in the performance, than an opportunity of improvement is envisaged and thereafter, in case of the employee not improving himself, an adverse entry would be perfectly justified. While the Reporting Officer and the Reviewing Officer would be well justified in issuing low marks or issue an adverse remarks to an employee, whose performance is not upto the standards, yet when the employee questions the same, the Reporting and the Reviewing Officer are required to justify their stand as regards the employee not being one upto the mark. Such justification could be given by the Reporting Officer and the Reviewing Officer only if during the reported period, the Reporting or the Reviewing Officer as the case may be, has issued any notices / warnings / censures to the Reporting Officer. 14. Furthermore, to this Court, it would appear criticizing an employee by mentioning in the Performance Appraisal Report that the employee is totally unreliable and incompetent is completely beyond the scope of PAR. For unreliable and incompetent employees, the State has provided with adequate Rules in the nature of the Discipline and Appeal Rules etc., which could be resorted to. Broadly painting an employee with a negative brush, more particularly when the employee has a pretty long career ahead of him, as could be made out considering that the petitioner is aged around 32 years, to this Court, would not be a justifiable action at all, more particularly in absence of any material. 15. Thus, in view of the above foregoing discussions, observations and conclusions, to this Court, it would appear that appropriate intervention is required. 16. Having regard to the above observations, to this Court, the following directions would meet with the ends of justice: (a) The order passed by the Collector, Ahmedabad, as the Chairman of the District Level Appeal Committee against adverse entry dated 04.12.2023 is hereby quashed and set aside. (b) The observations against the petitioner in the PAR for period between 20.06.2022 to 31.03.2023, more particularly the adverse entry of the Deputy Collector i.e. the Reviewing Officer is also quashed and set aside. (b) The observations against the petitioner in the PAR for period between 20.06.2022 to 31.03.2023, more particularly the adverse entry of the Deputy Collector i.e. the Reviewing Officer is also quashed and set aside. (c) The period in question i.e. 20.06.2022 to 31.03.2023 shall be treated as no appraisal period in so far as present petitioner is concerned. With this observations and directions, the present petition stands disposed of as allowed.