Gujarat High Court
Yuvrajsinh Hanubha Gohil vs The State Of Gujarat on 7 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12835 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
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YUVRAJSINH HANUBHA GOHIL
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
MS. KRINA CALLA, AGP on ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 07/01/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Gaurav Chudasama for the petitioner and learned AGP Ms. Krina Calla for the respondent
- State.
2. With the consent of the learned advocates for the parties, the matter is taken up for final hearing. Hence, issue RULE. Learned AGP Ms. Krina Calla waives service of notice for and Page 1 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined on behalf of the respondent - State.
3. By way of this petition, the petitioner has prayed for quashing and setting aside the impugned order dated 15.07.2024 passed by the respondent no. 1, order dated 25.07.2022 whereby the adverse remarks were communicated to the petitioner for a period from 19.06.2020 to 16.02.2021 and order dated 02.11.2022 whereby Reviwing Authority i.e. respondent no. 1 confirmed the order of the Additional Collector of giving adverse remarks against the present petitioner. The petitioner has also prayed for an order expunging the adverse remarks in the Annual Confidential Report of the petitioner for a period from 19.06.2020 to 16.02.2021.
4. At the outset, learned advocate Mr. Gaurav Chudasama, upon instructions, does not press prayer made in the paragraph no. 15 (E) at this stage with a view to file substantive petition for the aforesaid prater in respect of his claim for first higher pay scale as and when the need arises. Permission as prayed for is granted.
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NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined
5. It is the case of the petitioner that in the year 2012, the petitioner was selected on the post of Clerk, Class - III in non- sachivalay cadre pursuant to an examination taken by the Gujarat Subordinate Service Selection Board, Gandhinagar and vide appointment order dated 25.02.2012, he was appointed to the post of Clerk. Subsequently, in the year 2018 regular pay scale was given to the petitioner and on 17.06.2020, the petitioner was transferred from Limbdi to Dhangadhra as Clerk. The work distribution took place pursuant to his transfer vide order dated 19.06.2020 and he was given the work of "inward (RFMS), M.A.G., Scarcity, Disaster and work related to the Court matters." Vide order dated 22.07.2020, he was also entrusted with additional work of issuing agricultural certificate to the farmers and work related to land acquisition. 5.1. Thereafter, when his Annual Confidential Report was written by the I/c. Resident Additional Collector, Surendranagar, he made certain adverse remarks against the present petitioner and the same was communicated to the petitioner for a period Page 3 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined between 19.06.2020 to 16.02.2021 vide communication dated 25.07.2022 which reads as under:-
2 Please give clear Discipline, duty, passion, honesty, opinion in respect of sincerity and care to perform duty honesty - all these virtues make the revenue department the excel of the administration and only a person who could not get the job only would know the importance of this job. In the present employee, there is complete lack of the above qualities and therefore, he is required to be posted on a non-
sensitive post and is required to be re-educated.
3 Recommendation in Once he acquires necessary skill to respect of work to be serve then only it would be proper assigned to take a decision about which work could be assigned to him.
4 Overall Assessment Total Marks - 20 5.2. The aforesaid adverse remarks was communicated to the petitioner vide order dated 25.07.2022.
5.3. Against the aforesaid adverse remarks, the petitioner made a representation on 30.07.2022 to the Collector, Sunrendranager who is the Reviewing Authority and ultimately, the petitioner was informed to remain present on 22.09.2022 at 12:30.The Page 4 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined petitioner remained present on 22.09.2022 and once again tendered his written submission to the Collector, Surendranagar and ultimately, on 02.11.2022, the Collector, Surendranagar did not interfere with the adverse remarks against the present petitioner and after considering the petitioner's representation and also by taking note of the fact that there was on going departmental inquiry against the present petitioner wherein the petitioner was found guilty and a punishment of stoppage of one increment without future effect for a period of six months was also imposed upon the petitioner.
5.4. The petitioner challenged the aforesaid order dated 02.11.2022 before the Appellate Committee and the Appellate Committee also registered the petitioner's appeal as Appeal No. 1 of 2024 and ultimately dismissed the appeal by confirming the adverse remarks against the petitioner vide order dated 15.07.2024 and the aforesaid orders are under challenge before this Court by way of this petition.
6. Learned advocate Mr. Gaurav Chudasama appearing for the Page 5 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined petitioner has made following submissions:-
6.1. That right from the date of the appointment till today, except for the above period between 19.06.2020 to 16.02.2021, for the rest of the period, the petitioner's Annual Confidential Reports are good and no adverse remarks were ever communicated to the petitioner except for the present one. All throughout, the petitioner has got remarks of the nature of the good atleast before and after the present adverse remarks and therefore, the present adverse remarks is without any basis and is not in consonance with the petitioner's Annual Confidential Report post adverse remarks and prior to adverse remarks and therefore, this adverse remarks is the only adverse remarks during the entire service tenure of the petitioner which would come in the way of the petitioner in getting further promotion to the post of the Deputy Mamlatdar and therefore, the same is required to be quashed and set aside.
6.2. Though the petitioner was performing his duty absolutely, diligently and honesty and he was facing the issues related to Page 6 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined health, when he applied for leave on 13.10.2020 and 14.10.2020, both the leave applications were rejected by the authority who has written the ACR and therefore, the overall approach of the Assessing Authority towards the petitioner has led the Assessing Authority to write adverse remarks against the petitioner and therefore, the same is required to be ignored. 6.3. Learned advocate Mr. Chudasama further submitted that upon communication of adverse remarks, in the representation made against the adverse remarks itself, the petitioner has tendered his unconditional apology and has prayed for giving him one chance to improve. However, no compassion was shown by the authority and no chance was given to the petitioner to improve his approach and work and therefore, also on sympathetic consideration also, the authority was required to consider the petitioner's case and was required to expunge the adverse remarks made against the present petitioner. 6.4. Learned advocate Mr. Chudasama relied upon a decision of this Court in case of Sanjay M. Vaishnav V/s. State of Gujarat Page 7 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined decided on 16.01.2015 in Special Civil Application No. 10572 of 2013. However, learned advocate Mr. Chudasama was fair enough conceded that in that case the adverse remarks was expunged by the Coordinate Bench of this Court on the grounds of malafides which the petitioner of that petition could demonstrate successfully and in the instant case no malafides are attributed against the Assessing Officer. 6.5. He on the strength of the above submissions, prayed for quashing and setting aside the impugned orders and allow the petition.
6.6. Except for the above submissions, no other submissions were made by learned advocate Mr. Chudasama for the petitioner.
7. Learned AGP Ms. Krina Calla appearing for the respondent -
State vehemently opposed this petition and took this Court to the factual matrix of the petition. Learned AGP Ms. Calla drew attention of this Court and more particularly to the adverse remarks made against the present petitioner and submitted that the petitioner was working in the Revenue Department and it is Page 8 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined rightly observed in the adverse remarks that the Revenue Department is the excel of the administration and the petitioner is completely lacking all the virtues which are required in an employee.
7.1. Learned AGP Ms. Calla submitted that the Assessing Authority on the basis of the performance of the petitioner has categorically recorded that even for assignment of future work, when the petitioner is not found suitable to perform the job once he is re-educated or he under goes training then only what should be the nature of the job that can be decided. She submitted that the aforesaid findings are the findings of the facts based on the assessment of the present petitioner's work and the same has been confirmed by the Collector, Surendranagar who is the Reviewing Authority and first Appellate Authority which consist of three members and therefore, there are concurrent findings of the facts against the present petitioner which justifies the adverse remarks against the present petitioner. 7.2. Learned AGP Ms. Calla relied upon the decision of the Page 9 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined Hon'ble Supreme Court in case of Amrik Singh V/s. Union of India reported in 2001 (10) SCC 424 and by relying upon the paragraph no. 21 of the said decision, she submitted that even the Hon'ble Supreme Court has observed that in similar set of facts, even if it is unfortunate, the scope of the jurisdiction of High Court is very limited and the Court cannot go into the correctness of the adverse remarks or into the assessment made by the Selection Board on two occasions. Learned AGP Ms. Calla submitted that the petitioner's work was assessed by the I/c. Resident Additional Collector, Surendranagar and his adverse remarks against the petitioner was confirmed by the Collector who is Reviewing Authority against which an appeal was preferred and the Appellate Committee consists of three high ranked officers and even a committee of three high ranked officers also could not find any substance in the appeal of the petitioner and ultimately the petitioner's appeal also was rejected and as all these orders are based on finding of the facts as observed by the Hon'ble Supreme Court in case of Amrik Singh (supra), this Court may not interfere with the findings of Page 10 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined the facts and therefore, may not quash and set aside the impugned orders and dismiss the petition.
8. I have heard the learned advocates for the parties and perused the record. On perusal of the record, I found that the authority has in no uncertain terms while assessing the petitioner's work has stated that the petitioner is completely lacking discipline, willingness to serve passion, honesty, sincerity and care to perform his duty. The Assessing Authority has gone to the extent by saying that even for assigning future work to the petitioner also, the same can be done only once the petitioner is re-educated or is trained properly and once he cultivates the habit to work then only future work can be assigned to the petitioner. The aforesaid observations have been made by the Assessing Officer on the basis of close scrutiny of the petitioner's work. The Assessing Officer is the officer who is in a position to closely monitor and assess the work of the petitioner and when on the basis of his assessment, he has written this adverse remarks against the petitioner which has been confirmed by the Reviewing Authority and Appellate Page 11 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined Committee i.e. four other high ranked officers and more particularly when the aforesaid remarks are based on findings of the facts and on the basis of the performance of the petitioner, I do not see any reason to interfere with the same and take a contrary view as those are the officers who were in a position to asses the petitioner's work.
9. A perusal from the petitioner's representation would indicate that the petitioner has stressed upon the fact that he is having great academic career and he has secured very good marks in competitive examination. A person may be very good at academics but that will not make him a good employee as well and the Annual Confidential Report is something that an employee is required to earn and merely because some ACRs are written favorably or some officer has found the work of the employee to be satisfactory, does not mean that the other officers' assessment about the petitioner's work, quality or honesty is erroneous. Everyone has different method or views while assessing a person's performance and when the petitioner's performance was assessed and adverse remarks was Page 12 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined communicated to the petitioner and the same is confirmed by not just but two higher authorities i.e. Reviewing Authority and Appellate Authority, this Court in a writ petition under jurisdiction under Article 226 of the Constitution of India would not sit in appeal over the aforesaid findings and disturbed it.
10. As rightly pointed out by learned Ms. AGP Ms. Calla that the Hon'ble Supreme Court in case of Amrik Singh (supra) has observed in paragraph no. 21 as under:-
"21. In the result, we are not inclined to grant any relief to the appellant in spite of the fact that his performance in the subsequent years has been shown to be very good and his ratings were very high. Ultimately the single adverse remark of 1985-86 by the Reviewing Officer had stood in his way, not only at the time of original consideration but also when the matter was considered afresh pursuant to the directions of the High Court. The result may be unfortunate. But the scope of the jurisdiction of the High Court being very limited, we cannot go into the correctness of the adverse remarks nor into the assessment made by the Selection Board on the two occasions."
11. The above observation made by the Hon'ble Supreme Court also makes it clear that in a writ petition under Article 226 of the Constitution of India, this Court has very limited jurisdiction to interfere with the findings of the facts unless it is absolutely Page 13 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined perverse or based on proved malafides.
12. In the judgment relied upon by learned advocate Mr. Chudasama, though the Coordinate Bench of this Court, in case of Sanjay M. Vaishnav (supra) has quashed the adverse remarks but there in paragraph no. 25, the Coordinate Bench of this Court has categorically stated that "the petitioner's Annual Confidential Report have been actuated by mala fides and have no bearing on the basic duties of the petitioner as an Assistant Professor." In the instant case, even learned advocate Mr. Chudasam appearing for the petitioner has fairly conceded that no malafides are alleged against any of the officers and therefore, in absence of there being any proved malafides or even the allegation of malafides, the petitioner's case cannot be considered in light of the judgment in case of Sanjay Viashnav (supra) relied upon by learned advocate for the petitioner.
13. As far as the petitioner's submission that on two occasions the petitioner's leave application was rejected is concerned, an administrative officer is always empowered to someone who Page 14 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined will be held responsible at the end of the day for smooth running of administration or mis-administration and therefore, it is within the power of administration to consider the leave application and to grant it or reject it. The same cannot be a basis to allege malafide against the officers or such presumption can be drawn that merely by rejecting two leave applications, the officers approach has turned hostile towards the petitioner and therefore, the adverse remarks are made against the present petitioner. All such submissions cannot be accepted.
14. As far as the last submission of learned advocate Mr. Chudasama that the petitioner has already tendered unconditional apology and has assured that he will rectify the errors in future is concerned, though the petitioner has tendered the apology, again, it is for the authority to consider the same. Under Article 226 of the Constitution of India when three authorities have concurred with the findings of the facts as confirmed the adverse remarks against the petitioner, it would not be proper for this Court to ignore all the material against the present petitioner and focus only on the apology tendered by the Page 15 of 16 Uploaded by VARSHA DESAI(HC01393) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:06:07 IST 2025 NEUTRAL CITATION C/SCA/12835/2024 JUDGMENT DATED: 07/01/2025 undefined petitioner, if the Court interferes with the adverse remarks only on the ground of apology tendered by an employee in that case, it would be difficult for administration to run the administration as it may send a message that even if a person who is not properly working and some adverse remarks are passed against him merely by tendering apology, he can scot-free and therefore, this is not in the larger interest to accept such apology and expunge the adverse remarks.
15. Accordingly, the present petition is required to be dismissed and the same is dismissed. Rule is discharged. No order as to costs.
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