Gujarat High Court
Meeta Desai vs State Of Gujarat Thro Secretary on 2 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3336 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MEETA DESAI
Versus
STATE OF GUJARAT THRO SECRETARY & 3 other(s)
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Appearance:
ABHISST K THAKER(7010) for the Petitioner(s) No. 1
MR ADITYA JADEJA AGP for the Respondent(s) No. 1,3,4
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 02/02/2024
ORAL 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
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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.
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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
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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
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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. 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
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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.
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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. 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
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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
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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. 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
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work of the appellant. We give below a few relevant
extracts from the Confidential Reports for the period
subsequent to March 31, ]974.
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. 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
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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
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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
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(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.
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
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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).
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."
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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
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(1987)ILLJ529SC 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. 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
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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."
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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
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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,
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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.
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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.
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(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
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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. 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
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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.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
