Gujarat High Court
Yuvrajsinh Hanubha Gohil vs The State Of Gujarat on 7 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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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
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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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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
(NIRZAR S. DESAI,J)
VARSHA DESAI
