Gujarat High Court

Ajitsingh Jagansingh Yaduvanshi vs State Of Gujarat on 25 August, 2025

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                                                                          Reserved On   : 08/05/2025
                                                                          Pronounced On : 25/08/2025

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 19001 of 2017


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE D.N.RAY
                        ==========================================================
                                    Approved for Reporting                   Yes            No

                       ==========================================================
                                              AJITSINGH JAGANSINGH YADUVANSHI
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
                       MS. MALVIKA SINGH, AGP for the Respondent(s) No. 1
                       REFUSED SERVED (R)(70) for the Respondent(s) No. 2
                       ==========================================================
                          CORAM:HONOURABLE MR.JUSTICE D.N.RAY


                                                        CAV JUDGMENT

1. Heard Ms.Harshal N.Pandya, learned advocate for the

petitioner and Ms.Malvika Singh, learned Assistant

Government Pleader for the respondent No.1-State.

2. Having regard to the brief controversy arising in the

petition, with the consent of the learned advocates for the

respective parties, the matter is taken up for final hearing.

3. Brief facts of the case are as under:-

3.1 The petitioner was initially appointed to the post of

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Geological Assistant in the Industries and Mines Department

on 16.02.1987. Subsequently, on 16.11.1999, he was

promoted to the post of Assistant Geologist, and he has

continued to serve in that capacity till the filing of the present

petition.

3.2 In the year 2004, proceedings were initiated against the

petitioner under the Prevention of Corruption Act pursuant to

the registration of a case by the Anti-Corruption Bureau

(ACB). These proceedings culminated in the acquittal of the

petitioner by the learned Second Additional District Judge,

Bharuch, on 23.08.2011. It has been brought to the notice of

this Court that an appeal challenging the acquittal has been

preferred and is currently pending consideration. In the

interim, based on the same allegations that were the subject

matter of the ACB case, a departmental inquiry was also

instituted against the petitioner. A charge-sheet dated

28.12.2004 was issued, and the departmental proceedings

ultimately concluded with the exoneration of the petitioner.

3.3 On 29.02.2016, a meeting of the Departmental

Promotion Committee (DPC) was convened for considering

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eligible candidates for promotion to the post of Geologist,

Class-I, which is the promotional post for Assistant Geologist.

The petitioner was eligible for consideration for such

promotion.

3.4 It is the petitioner's case that, a few hours prior to the

scheduled DPC meeting, he was served with letters dated

26.02.2016, which intimated to him that adverse entries had

been recorded in his Annual Confidential Reports (ACRs) for

the years 2009-10, 2010-11, 2011-12, and 2012-13. The

petitioner contends that all these adverse entries were

communicated to him simultaneously on 29.02.2016, just

before the DPC meeting. Upon receipt of these

communications, the petitioner submitted his representations

on the same date, i.e., 29.02.2016.

3.5 The gist of the comments on adverse entries as noted by

the Reporting Officer, Reviewing Officer, Accepting Officer

and the petitioner's response to such comments are noted

hereinbelow in tabular form for the sake of convenience :-

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2009-2010 Reporting Officer 'average officer' and "unable to correspond in Gujarati language"

Reviewing Officer "He does not know Gujarati writing" "actual quantum of work carried out not shown".

Accepting Officer petitioner be sent for training. Remark made in column 10 is ordered to be maintained.

Petitioner's reply Petitioner cleared Gujarati Language examination required as a part of service conditions. Letters written by him to show he is good at Gujarati.

2010-11 Reporting Officer Reported him as 'good officer'. Reviewing Officer "since the State Government has preferred appeal against the order acquitting petitioner in A.C.B. case, integrity of petitioner is doubtful".

Accepting Officer Confirmed remarks of Reviewing Officer. Petitioner's reply Guideline prohibits to write about integrity of employee in ACR. 2011-12 Reporting Officer Reported him as 'good officer'. Reviewing Officer Modified and written "since the State Government has preferred appeal against the order acquitting petitioner in A.C.B. case, integrity of petitioner is doubtful". He added "show-cause notice issued for indiscipline and not performing exploration duty". Accepting Officer Confirmed remarks of Reviewing Officer. Petitioner's reply Writing about integrity not permissible and show-cause notice was ordered to be filed vide order dated 15.03.2016. 2012-13 Reporting Officer Reported him as "Very Good Officer". Reviewing Officer Modified and "No, he has not done anything extraordinary, which deserves Very Good". A.C.B. case going on. doubtful." Accepting Officer Remark on integrity was ordered to be deleted, rest was maintained.

Petitioner's reply For exploration work, details

3.6 Thereafter, by orders dated 02.08.2016, the adverse

entries in his ACRs were maintained. It is further stated by

the plaintiff that the said orders were not served on the

petitioner contemporaneously. According to the record, these

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were dispatched by ordinary post to the Commissioner of

Geology and Mining and to the petitioner's office in Mehsana.

Eventually, after inquiry by the petitioner, the

communications were forwarded to him under cover of a

letter dated 23.05.2017. In the meantime, on 06.05.2017,

certain officers junior to the petitioner were promoted to the

post of Geologist, Class-I.

4. Aggrieved thereby, the present petition has been

preferred with the following prayers:

"(A) quash and set aside the adverse entries recorded in the Annual Confidential Reports of the petitioner for the years 2009-10; 2010-11; 2011-12; and 2012-13 and further be pleased to quash and set aside the letters dated 26.02.2016 and orders dated 02.08.2016;

(B) further be pleased to direct the respondent authorities to consider the case of petitioner for promotion to the post of Geologist, Class-I from the date on which juniors to petitioner were promoted i.e. 06.05.2017, and

(C) award the cost of the petition, and,

(D) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from taking into consideration the adverse entries recorded in the Annual Confidential Report of the petitioner for the period for the years 2009-10; 2010-11; 2011-12; and 2012-13 against him for any purpose, and

(E) grant any other relief or pass any other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case."

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5. Ms.Harshal Pandya, learned advocate for the petitioner

submitted that the recording of adverse entries just two days

before the meeting of DPC and the communication thereof,

barely a few hours before the DPC meeting to be held on

29.02.2016 is nothing but a deliberate attempt to jeopardize

the promotion of the petitioner who has been clearly targeted

for reasons best known to the respondent-authorities. Ms.

Pandya further submitted that the entries are in complete

violation of the guidelines dated 31.03.1989 issued by the

State Government and further the information received by the

petitioner under RTI shows that the reviewing officer had

already retired from service and the said retired reviewing

officer, the respondent No.2 herein, was asked shortly before

26.02.2016 as to whether the entries in question were to be

treated as adverse or not.

5.1 Ms.Pandya further adverted to the documents at Page

Nos. 54 to 57 of the paper-book which are letters written by

the petitioner to show that the petitioner has infact

communicated fluently in Gujarati and therefore the contents

of the entries for 2009-2010 were utterly false on the face of

it.

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5.2 As far as the note of the reviewing officer in 2004, the

entry for the year 2012-13 by which the reporting officer's

comment as "very good officer" was modified by the reviewing

officer with the remarks "no, he has not done anything

extraordinary, which deserves very good". Ms. Pandya

submitted that the documents at Annexure "H" to the petition

at pages 85 to 135 of the paper-book would demonstrate the

level of work which has been performed by the petitioner.

6. Ms.Malvika Singh, learned Assistant Government

Pleader appearing on behalf of the respondent No.1-State

authority was not in a position to controvert the facts alleged

by the petitioner, except to submit that this Court may not

interfere with the entries in question as they are bonafide.

She further submitted that since the appeal against the

acquittal of the petitioner is pending, and further that the

petitioner was on suspension from 06.08.2016 till his

retirement in 2020, no relief can be granted to the petitioner.

7. FINDINGS :-

7.1 I find, on perusal of the paper-book, that no affidavit-in-

reply has been filed by the State to deny the averments made

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by the petitioner inspite of the fact that the matter has been

pending since 2017 and the right of the respondent to file the

reply was closed by order dated 05.05.2025. In any case, the

respondent was permitted to raise whatever defences it could.

However, the factual averments, particularly the veracity of

the documents enclosed with the present petition could not be

controverted by the learned AGP. I have cursorily gone

through the documents at Annexure "E" & "H" to prima facie

satisfy myself that even on merits, the adverse entries

recorded against the petitioner, perhaps lacked any basis

whatsoever. However, the instant case does not turn on the

merits of the entries but rather the mode and the manner in

which the said entries came to be recorded and

communicated to the petitioner on the eve of the DPC meeting

held on 29.02.2016.

7.2 The extracts of Clause 8 & 11 of the guidelines dated

31.03.1989, as translated from Gujarati, are extracted

hereinbelow for ready reference :

"8. Time table to complete the process of writing the Report:-

The time table for various procedures decided by the Government in order to complete the process of writing

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and reviewing the Confidential Report in time-bound manner is mentioned hereunder:

The Establishment Branch of every Section/Department/Office shall fill in the information of Part- 1 of the form of the Report before 21st March every year and to provide the same to the Reporting Officer for writing the Report. If the Reporting Officer has been transferred, then the form of the Report should be forwarded to him. This entire process should be commenced from 1st March every year. Accordingly:

(1) The Establishment Branch of all the offices shall have to fill in the information of Part-1 of the the Report of the Non-Gazetted employees and provide the same to the Reporting Officer before 31st March.

(2) For the purpose of writing the Confidential Report of the Gazetted employees, their self-appraisal forms shall be provided before 31st March every year for writing in the Part-

2 thereof. The Confidential Report forms of the officers of the All India Services cadre shall be provided to the Reporting Officer.

3) The Reporting Officer of the Non-Gazetted Officers shall write the Report and forward the same to the Reviewing Officer latest by 20th of April. If the Reviewing Officer has been transferred, the Report shall be forwarded to him within time-limit.

4) The concerned Gazetted Officer shall have to fill up the "Self Appraisal" Part-2 and produce the same before the Reporting Officer latest by 20th of April. If the "Self Appraisal" is not produced before the Reporting Officer by 20th of April, then without waiting for the same, the Reporting Officer shall obtain the form of Report from the Establishment Branch and initiate the procedure to write the Report.

5) The Reporting Officer of the Gazetted officer shall have to complete such procedure by 30th of April every year.

6) The Reviewing Officers shall have to complete the procedure of review for the Gazetted and Non-Gazetted officer by 15th of May every year.

7) Every Reviewing Officer shall have to inform concerned Deputy Secretary (Establishment) of the concerned administrative department / Head of the Department / Head

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of the Office about the completion of the procedure of review by 20th May every year. If the procedure of review is not completed within this time-limit, the same should be informed to the aforesaid officers with reasons.

8) The concerned Deputy Secretary (establishment) shall have to furnish a Certificate regarding the completion of procedure of writing (reporting) and reviewing Confidential Report to the concerned Secretary by 25th of May every year. Based on this Certificate, concerned Secretary shall inform the General Administrative Department about completion of the procedure of writing (reporting) and reviewing Reports of the employees/officers of his Department / of the Department under his control. On the basis of such Certificate of every Department, the General Administrative Department is required to furnish Certificate regarding completion of writing (reporting) and reviewing of the Reports to the Principal Secretary by 15th of June every year.

9) The forms of Report shall have to be sent to the retiring Reporting Officer one month before the date of superannuation. The Report which is required to be written by the retiring Reporting Officer on the basis of 'Self Appraisal' of the officers, in such cases, the concerned officers shall have to submit 'Self Appraisal' to the Reporting Officer fifteen days before his/her superannuation.

10) During the inspection work of the office of the Head of the Department, the inspection officers should also check that the aforesaid instructions for writing (report) / reviewing the Confidential Report are complied with and implemented properly.

The concerned Administrative Departments should bring the above instructions to the notice of the Boards / Corporations under their control and give necessary instructions to them for strict implementation thereof in case of the officer / employee on deputation.

11. Regarding reporting of the adverse remark made in the Report:

In case of adverse remark regarding integrity, efficiency etc. in the performance is made in the Report, the employee should not be kept unaware about the same. Such adverse remark should be communicated to the employee within six weeks after completion of the procedure of Report

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in the respective year. Adverse remark should be communicated by the officer having charge of Reports. Various Administrative Departments shall have to make clear orders to intimate regarding the adverse remarks made in the Confidential Reports of the employees / officers of the Departments/ Offices under their control. Upon completion of the procedure of the writing, reviewing and counter- signing the Report, the officer having the charge of the Report, is required to intimate about the adverse remark. The adverse remark is required to be communicated with the signature of the officer having charge of the report or with the signature of an authorized officer, generally, having one level higher rank (cadre) than that of the one whose Report is written."

8. It is an uncontroverted position that the petitioner came

to be acquitted by the learned Trial Court at Bharuch where

the State is in appeal against the said acquittal and the said

proceedings are pending. It is also not in dispute that

following the acquittal, the departmental proceedings

initiated against the petitioner came to be dropped on

03.02.2012. From the record, it is clear that on the eve of the

DPC, i.e. on 26.02.2016, the adverse entries for four

consecutive years namely 2009-10, 2010-11, 2011-12, 2012-13

were prepared which came to be served upon the petitioner

barely hours before the DPC meeting on 29.02.2016. From the

inordinate delay i.e., more than six years in case of ACR for

the year 2009-10 and more than three years for ACR for the

year 2012-13 and the manner in which the adverse entries

came to be served in person upon the petitioner when the

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DPC meeting was just about to be held, in my view, the entire

exercise was to ensure that the petitioner somehow should be

excluded from consideration of the DPC. Apart from the fact

that prima facie, there was no basis of recording the said

adverse entries, the adverse entries in question are recorded

in utter violation of the guidelines dated 31.03.1989, issued by

the State Government which mandates the minimum period of

six weeks before the DPC meeting for the recording of

adverse entries. The salutary provision in the aforesaid

guidelines is to specifically exclude and prevent the cases of

abuse as the exemplar in the present case demonstrates,

where adverse entries have been prepared at the 11 th hour

with the sole purpose of forcing the petitioner out of zone of

consideration. The other shocking features are that the letters

were written to the retired officers seeking their response

whether the entries against the petitioners were to be treated

as adverse or not. It is also shocking why merely because the

Government's Appeal against the acquittal is pending, the

integrity of the petitioner becomes doubtful as a consequence

thereof.

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9. In matters of public employment, the State is expected

to be acting in an exemplary manner, as a model employer.

The present case discloses how the State has acted in a

thoroughly unstately manner, which does not befit it. Even till

2025, despite the orders of this Court dated 12.10.2017 and

11.07.2018, no reply has been filed, only to delay the matter,

allowing the petitioner to helplessly superannuate.

10. This Court in the case of B.M. Rajvanshi Vs. State of

Gujarat (SCA No. 252 of 2009) has held as under :-

"10. The only issue that now remains for adjudication is whether the delay in the communication of the adverse remarks, which in the present case, is of about twenty five weeks, would vitiate the adverse remarks and whether they ought to be quashed and set aside on this ground alone.

11. In order to decide this issue, it may be fruitful to advert to a judgment of the Supreme Court in the case of State of Haryana Vs. Shri P.C. Wadhwa, IPS, Inspector General of Police And Another reported in AIR 1987 SC 1201. The relevant paragraph of the judgment is extracted hereinbelow:

"14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case maybe. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the

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instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."

14. In I.H. Mehta Vs. State of Gujarat (supra), this Court, after taking into consideration the judgment in the case of State of Haryana Vs. Shri P.C. Wadhwa, IPS, Inspector General of Police And Another (supra), has quashed the adverse remarks in the case of the petitioner therein, on the ground of inordinate delay. The relevant paragraphs of the said judgment are reproduced hereinbelow:

"8. I have considered the averments made by the petitioner in this petition as well as the submissions made by Mr. Parikh for the petitioner and Mr. Desai for the respondent authorities. I have also taken into consideration the decisions cited by Mr. Parikh in support of his submissions. In 1985 (2) GLR 616, the question of communication of adverse remarks to the employee concerned has been considered by the division bench of this court and it has been observed that the merits or demerits are to be judged on the basis of four factors, as per the rules already referred to hereinabove. In 1992(1) GLH 209, it has been observed by this court that the adverse remarks and the adverse entries in the petitioner's confidential

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report for the period between 13.10.1986 and 31.3.1987 were communicated to the petitioner after about thirteen months. The Government circulars issued from time to time provided that the adverse remarks should be communicated within six weeks and also that the aggrieved employee should make representation within six weeks from the date of communication of such adverse remarks. In view of grossly belated communication of the adverse remarks, the authority was directed to ignore those adverse entries. The learned single Judge of this court has relied upon the decision of the apex court in case of State of Haryana versus P.C. Vagha, reported in AIR 1987 SC 1201. Mr. Parikh has submitted that the adverse remarks for the period from 1st April, 1984 to 31stMarch, 1985 has been communicated to the petitioner on 10th December, 1985 and there was gross delay in communication of the adverse report and therefore, considering the decision of this court, such adverse remarks in the confidential report of the petitioner now cannot be considered against the petitioner and the show cause notice was issued by the respondent authority on 24th September, 1986 relying upon the said adverse entry. Said adverse remarks were made absolute by order dated 8th September, 1986 and the petitioner was not permitted to cross the Efficiency Bar. He has, therefore, submitted that in view of the facts of the present case and the law laid down by this court as well as the apex court, the present petitions should be allowed by granting reliefs as prayed for in the present petition as prayed for.

9. Therefore, in light of the decisions cited above and considering the government resolution dated 20.1.1972 and 19.9.1975, the order passed by the respondent authority dated 10th December, 1985 confirming the said adverse entries by order dated 8th September, 1986 and the show cause notice dated 24th September, 1986 are required to be quashed and set aside by allowing this petition. Accordingly, order dated 10th December,1985 as well as the order dated 8th September, 1986 and the show cause notice dated 24.9.1986 are hereby quashed and set aside and the respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring the said adverse remarks for the

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aforesaid period from 1st April, 1984 to 31st March,1985 and it is also declared that the petitioner is entitled to normal increment from 1st June, 1985 till the date of his retirement. The respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring his adverse entries as aforesaid as expeditiously as possible, preferably within two months from the date of receipt of certified copy of this order. The respondents are further directed to release normal and regular increments of the petitioner from 1st June, 1985 and to pay all the difference of arrears of such increments within two months from the date of receipt of certified copy of this order. The respondents are also directed to fix the salary of the petitioner after releasing regular and normal increments from 1st June, 1985 and to pay whatever arrears available to the petitioner within two months from the date of receipt of certified copy of this order. Rule is made absolute accordingly with no order as to costs."

(emphasis supplied)

20. For the aforestated reasons and taking into consideration the judicial pronouncements referred to hereinabove, the petition deserves to be allowed on the ground of delay in the communication of the adverse remarks. Hence, the following order is passed:

The adverse remarks for the period from 01.04.2004 to 31.03.2005 made by the Accepting Officer, as communicated to the petitioner by the letter dated 09.11.2005, are hereby quashed and set aside. As a consequence thereof, the respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Superintendent of Police with effect from 15.05.2008, with all consequential benefits."

10.1. This Court in the case of Sureshbhai Motibhai

Patel Vs. State of Gujarat and Another (SCA No. 485 of

2004), has held as under :-

"4. I have heard both the sides and also gone through the petition along with annexures forming part of the petition.

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For the purpose of giving benefit of higher pay-scale, last five years C.R.s is required to be taken into consideration, i.e. from 1994 to 1999. The claim of the petitioner that higher pay-scale was arose on 14th July, 2000. At that time no adverse entry was communicated to the petitioner. In view of the same, in my view, the petitioner could not have been denied the said benefit from the said date as at that time, no adverse entry was communicated and at a later point of time it was communicated after recording the same in service record. Late communication of adverse entry therefore deprive the petitioner from making effective representation to the Authority. Learned Assistant Government Pleader submits that as per affidavit-in-reply, there was some delay in communicating the same to the petitioner. At Page No.72 it is averred as under:

"I say that adverse remarks of the any employee in the confidential report are to be intimated to the employee within 6 weeks but in this case the petitioner who working as a Assistant Teacher in Ideal Residential School was intimated about his adverse remarks after some delay and this delay was due to Administrative delay and the said delay does not affected. The case of the petitioner in any way"

5. In my view, when five years of CRs are required to be taken into consideration, i.e. from 1994 to 1999, for giving benefit of higher pay-scale and when admittedly within stipulated time, it can be said that the petitioner was denied opportunity of making effective representation at the relevant point of time. It is true that the said benefit has been given to the petitioner from the next year, i.e. from 2001, but in my view, since explanation for late communication is not at all justified, such adverse entry should not come in way of the petitioner for getting higher pay-scale from 15th July, 2000 instead of 15th July, 2001. In this connection, a reference is required to be made to the decision of learned Sing Judge of this Court in the case of M.U. Shaikh v Director of Employment and Training reported in 1996 (3) GCD 722 (Guj). In this case, the learned Sing Judge has held that there is no dispute about the fact that adverse entries were required to be communicated within six weeks after completion of C.R. of the relevant period, for which they are written. In paragraph 6 of the said judgment, it has been held as under:

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"6. 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 vs. P.C. Wadhwa, AIR 1987 SC 1201 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 on substantial compliance with the provisions of the Rules, which require remarks to be communicated. In C.N. Chavda vs D.G.P., reported in 1992 (1) GLH 209, replying 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

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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. In view of above, the petition is required to be allowed on the ground that adverse remarks were communicated without any justification at a very late stage and considering the averments made in the affidavit, there is no justification for communicating the same to the petitioner at such a late stage. The petition is accordingly allowed. The order impugned in the present petition is quashed and set aside. Respondents are directed to give benefit of higher pay-scale to the petitioner with effect from 14th July, 2000 instead from 14th July, 2001. If any amount is required to be paid to the petitioner in this behalf, the same may be paid within a period of three months from today. Rule is made absolute accordingly with no order as to cost."

10.2 The Hon'ble Apex Court in the case of State of

Haryana Vs. P.C. Wadhwa reported in (1987) 2 SCC 602,

has held as under :-

"13. Before we part with this appeal, we may dispose of another contention of the respondent about the delay in communicating to him the impugned adverse remarks. Under Rule 5 of the Rules, a confidential report assessing the performances, character, conduct and qualities of every member of the service shall be written for each financial year, or calendar year, as may be specified by the Government, ordinarily within two months of the close of the said year. Rule 6 provides that the confidential report shall be reviewed by the reviewing authority ordinarily within one month of its being written. Under Rule 6A, the confidential report, after review, shall be accepted with such modifications as may be considered necessary, and countersigned by the accepting authority, ordinarily within one month of its review. Thus, the whole process from the writing of the confidential report to the acceptance thereof has to be completed ordinarily within a maximum period of four months. Further, under Rule 7 the adverse remarks, if any, in a confidential report shall be communicated to the officer concerned within three months of the receipt of the confidential report. Thus, a total period of seven months has been laid down as the maximum period

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within which adverse remarks, if any, has to be communicated to the officer concerned. It has been already noticed that the adverse remarks were sent to the respondent after two years three months, that is, after twenty seven months of the close of the year. It is submitted by the respondent that in view of the delayed communication. the adverse remarks lost all importance and should be struck down on that ground.

14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."

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10.3. The Hon'ble Apex Court in the case of I.H. Mehta Vs.

State of Gujarat, reported in 2000 SCC OnLine Guj 239,

has held as under :

"8. I have considered the averments made by the petitioner in this petition as well as the submissions made by Sri Parikh for the petitioner and Sri Desai for the respondent-authorities. I have also taken into consideration the decisions cited by Sri Parikh in support of his submissions. In 1985 (2) G.L.R. 616 (vide supra), the question of communication of adverse remarks to the employee concerned has been considered by the Division Bench of this Court and it has been observed that the merits or demerits are to be judged on the basis of four factors, as per the rules already referred to hereinabove. In 1992 (1) G.L.H. 209 (vide supra), it has been observed by this Court that the adverse remarks and the adverse entries in the petitioner's confidential report for the period between 13 October, 1986 and 31 March, 1987 were communicated to the petitioner after about thirteen months. The Government circulars issued from time to time provided that the adverse remarks should be communicated within six weeks and also that the aggrieved employee should make representation within six weeks from the date of communication of such adverse remarks. In view of grossly belated communication of the adverse remarks, the authority was directed to ignore those adverse entries the learned Single Judge of this Court has relied upon the decision of the Apex Court in case of State of Haryana v. P.C. Wadhwa reported in 1987 (2) L.L.N. 24. Sri Parikh has submitted that the adverse remarks for the period from 1 April, 1984 to 31 March, 1985, has been communicated to the petitioner on 10th December, 1985 and there was gross delay in communication of the adverse report and therefore, considering the decision of this Court, such adverse remarks in the confidential report of the petitioner now cannot be considered against the petitioner and the show-cause notice was issued by the respondent authority on 24 September, 1986, relying upon the said adverse entry. Said adverse remarks were made absolute by order, dated 8 September, 1986, and the petitioner was not permitted to cross the efficiency bar. He has, therefore, submitted that in view of the facts of the present case and the law laid down by this Court as well as the Apex Court, the present petitions should be allowed by granting reliefs as prayed for in the present petition as prayed for.

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9. Therefore, in light of the decisions cited above and considering the Government resolution, dated 20 January, 1972 and 19 September, 1975, the order passed by the respondent-authority, dated 10 December, 1985, confirming the said adverse entries by order, dated 8 September, 1986, and the show-cause notice, dated 24 September, 1986, are required to be quashed and set aside by allowing this petition. Accordingly, order, dated 10 December, 1985, as well as the order, dated 8 September, 1986 and the show- cause notice, dated 24 September, 1986, are hereby quashed and set aside and the respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring the said adverse remarks for the aforesaid period from 1 April, 1984 to 31 March, 1985, and it is also declared that the petitioner is entitled to normal increment from 1 June, 1985 till the date of his retirement. The respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Collector by ignoring his adverse entries as aforesaid as expeditiously as possible, preferably within two months from the date of receipt of certified copy of this order. The respondents are further directed to release normal and regular increments of the petitioner from 1 June, 1985, and to pay all the difference of arrears of such increments within two months from the date of receipt of certified copy of this order. The respondents are also directed to fix the salary of the petitioner after releasing regular and normal increments from 1 June, 1985, and to pay whatever arrears available to the petitioner within two months from the date of receipt of certified copy of this order. Rule is made absolute accordingly with no order as to costs. Petition allowed."

11. For the reasons aforesaid and following the law laid

down in several decisions discussed hereinabove, the present

petition succeeds. The adverse entries recorded in the ACR of

the petitioner for the years 2009-10, 2010-11, 2011-12, 2012-

13 as well as the communication dated 26.02.2016 and order

dated 02.08.2016 are hereby quashed and set aside. The

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respondent-authorities, consequently are further directed to

promote the petitioner to the post of Geologist, Class-I from

06.05.2017 i.e. the date on which the immediate junior to the