Rathva Fulsingbhai Bhangiyabhai vs Government Of Gujarat
2022 Latest Caselaw 6942 Guj

    C/SCA/18652/2013                                 JUDGMENT DATED: 04/08/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18652 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                       Sd/-

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1    Whether Reporters of Local Papers may be allowed to see              YES
     the judgment ?

2    To be referred to the Reporter or not ?                              YES

3    Whether their Lordships wish to see the fair copy of the             NO
     judgment ?

4    Whether this case involves a substantial question of law as          NO
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                       RATHVA FULSINGBHAI BHANGIYABHAI
                                    Versus
                       GOVERNMENT OF GUJARAT & 1 other(s)
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Appearance:
MR HEMAL K ACHARYA(6021) for the Petitioner(s) No. 1
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 04/08/2022

                                ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India is filed seeking directions to set aside the adverse remarks in the Confidential Report for the period 2008-2009 and 2009-2010. The petitioner has also prayed for grant of first higher grade with effect from October,

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2011, as according to the petitioner, the same has been withhold on account of the adverse remarks.

2. It is the case of the petitioner that even while taking the action on the basis of adverse remarks, the respondents have not followed the principle of natural justice, as the petitioner, who had represented against the adverse remarks, was not called for hearing nor the order of confirming adverse remarks, is a reasoned order.

3. Learned Advocate for the petitioner submitted that the petitioner also faced adverse remarks for the year 2007-2008. However, upon representation being made, the said adverse remarks were set aside. It is submitted that the respondent-Authority, though set aside the adverse remarks in the year 2007-2008, the petitioner was given very same adverse remarks in the subsequent year.

4. Learned Advocate for the petitioner has drawn attention of this Court to the order passed on the representation made against adverse remarks by the Authority and indicated that no reasons have been assigned as to why adverse remarks have been confirmed.

5. Learned Advocate for the petitioner has relied upon the decision of the Apex Court in case of Dev Dutt v/s. Union of India & others passed in Civil Appeal No. 7631 of 2002 dated 12-05-2008 and has relied upon Para-25 and Para-31. Learned Advocate has also relied upon the decision of this Court in case of Gulabbhai B. Patel v/s. Chairman - Dakshin Gujarat Vij Company Ltd. passed in Special Civil Application No.16426 of 2007 dated 15-04-2019.

6. As against this, learned AGP opposed the petition by submitting that the petitioner was communicated adverse remarks and has also placed his representation against such adverse remarks and thereafter, Inquiry was initiated. It is submitted that adverse remarks for one year, have been set aside, whereas for the subsequent two years, adverse remarks were not set aside even after the representation. It is submitted that on account of the Government Resolution, which provides for verifying

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Confidential Report of last five years, as the petitioner was having adverse remarks in two years, case of the petitioner for higher grade could not be considered in terms of the Government Resolution.

7. Learned AGP has relied upon the decision of the Apex Court in case of Amrik Singh v/s. Union of India and others reported in (2001) 10 SCC 424 and has relied upon Para-15.

8. In rejoinder, learned Advocate for the petitioner has submitted that though the Departmental Inquiry was initiated by Show Cause Notice dated 08-10-2009, however, thereafter, no further action has been taken against the petitioner and therefore, such Show Cause Notice cannot be treated to the disadvantage of the petitioner for not granting Higher Pay Scale.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the the petitioner was working as Assistant Machineman in the Government Press since 1999. Thereafter, the petitioner was confirmed in the year 2005. It appears that the petitioner was communicated adverse remarks for the year 2007-2008 by communication dated 08-05-2008 against which the petitioner represented to the Director of the Department and adverse remarks of lack of discipline was set aside by communication dated 26- 10-2009. It appears that thereafter again, for the year 2008-2009 by communication dated 05-05-2009, the petitioner was conveyed adverse remarks in the nature of lack of discipline and lack of following rules and regulations. The petitioner once again made Appeal against adverse remarks. However, by communication dated 26-10-2009, adverse remarks for the year 2008-2009 were maintained. Again by letter dated 12-05-2010, the petitioner was communicated adverse remarks for the year 2009-2010 for the reason of lack of discipline and being habitual in making unnecessary writings. Against this also, the petitioner filed Appeal on 04-06-2010. However, by communication dated 07-09-2011, adverse remarks were confirmed. It is pertinent to observe that after

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communication of adverse remarks and the petitioner having filed an appeal, the petitioner was called upon to remain present by communication dated 13-09-2010 (Annexure-M). Therefore, in the opinion of the Court, the respondents have complied with principle of natural justice, even while considering Appeal filed by the petitioner against the adverse remarks.

10. It appears that on account of the Government Resolution dated 02-07-

2007 particularly Clause-12 of such Government Resolution, which clearly provides that while granting benefits of Higher Pay-scale, Confidential Report of last five years of the employee requires to be considered and as the adverse remarks of the petitioner for the year 2008-2009 and 2009-2010 were entered into Confidential Report, case of the petitioner for Higher Pay-scale could not be considered.

11. The Apex Court in case of Amrik Singh (supra), relying upon the decision in case of Union of India v/s. Lt. Gen Rajendra Singh Kadyan reported in (2000) 6 SCC 698, provided that the scope of this Court under Article-226 of the Constitution of India to examine the merits of the adverse remarks is limited and according to this Court, judicial review of adverse remarks can be undertaken only if there is a procedural lapse. In the facts of this case, the Court does not find any procedural lapse and non-granting of benefit of Higher Grade is only on account of the operation of the Government Resolution applicable.

12. In so far as reliance placed on the decision of the Apex Court in case of Dev Dutt (supra), it would be pertinent to observe that in the aforesaid case, entry 'good', which was made, had acted adversely to the interest of the employee therein, as in the previous year, the petitioner was given entry 'good' against which he has represented and the same was converted into 'very good', whereas in the present year, employee therein was not communicated entry of 'good' as the same cannot be treated to be adverse entry. However, when such entry had acted against interest of the employee, the Supreme Court thought it fit that

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such entry ought to have been communicated. Facts in the case before the Supreme Court are at great variance to the facts of the present facts, as it is an admitted position that the petitioner was indeed communicated with the adverse remarks, against which the petitioner has made an appeal and by confirming the adverse remarks, the petitioner was called upon to represent his case.

13. The other case on which the learned Advocate for the petitioner has relied upon i.e. Gulabbhai B. Patel (supra), same is the issue of promotion, where the Juniors to the petitioner came to be promoted. The question before the Court was that the petitioner was never communicated that his rating as per the Confidential Report are below 55% and below 55% is treated as adverse, he was not promoted and therefore, the Court came to the conclusion that the petitioner therein ought to have been communicated about the entry of below 55% marks in the Confidential Report. These facts can not help the case of the petitioner.

14. In view of the aforesaid reasoning, no case is made out for any interference. Hence, this petition deserves to and is hereby dismissed . Rule is discharged. No order as to costs.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA