Gujarat High Court

B B Dwivedi, Gas vs State Of Gujarat on 22 September, 2025

                                                                                                                       NEUTRAL CITATION




                           C/SCA/8469/2009                                             JUDGMENT DATED: 22/09/2025

                                                                                                                        undefined




                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 8469 of 2009


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT
                      ==========================================================

                                  Approved for Reporting                          Yes               No
                                                                                   ✓
                      ==========================================================
                                                         B B DWIVEDI, GAS
                                                              Versus
                                                        STATE OF GUJARAT
                      ==========================================================
                      Appearance:
                      MR. A R ROCKEY(7592) for the Petitioner(s) No. 1
                      MR. HARDEEP L MAHIDA(7112) for the Petitioner(s) No. 1
                      DR. POOJA ASHAR, AGP for the Respondent(s) No. 1 - STATE
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 22/09/2025
                                                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate for the

respondent waives service of notice of rule on behalf of

respondent. With the consent of the parties, the matter is

heard at length and taken for final disposal.

2. The present petition is filed by the petitioner for

seeking the following reliefs:

"A. Your Lordships may be pleased to allow this petition;

B. Your Lordships may be pleased to quash and set aside

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

impugned order dated 17.11.2008 confirming the adverse remarks in the Annual Confidential Report of the present petitioner between 1.4.2006 to 3.1.2007.

C. Your Lordships may be pleased to pass appropriate orders for expunging of adverse remarks in the Annual Confidential Report of the present petitioner for the period between 1.4.2006 to 3.1.2007.

D. Your Lordships may be pleased to stay further execution, implementation and operation of the impugned order dated 17.11.2008 confirming the adverse remarks in the Annual Confidential Report of the present petitioner between 1.4.2006 to 3.1.2007 pending admission and final decision in the petition.

E. Your Lordships may be pleased to grant such other and further relief/s in the interest of justice."

FACTS OF THE CASE:-

3. Brief facts as stated in the memo of the petition are as

under:

3.1 It is the case of the petitioner in this petition that the

petitioner had been served upon with a letter dated 25.2.2008

whereby adverse entries for period between 1.4.2006 to

3.1.2007 had been communicated. It is further the case of the

petitioner in this petition that representation against

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

confirmation/retention of the adverse entry in Annual

Confidential Report for the period between 1.4.2006 to

3.1.2007 was submitted by the petitioner to respondent on

15.7.2008, which had been received by the department on the

same date. Vide a communication dated 17.11.2008, the

petitioner had been informed by the respondent authorities

that the adverse entries issued against the petitioner had

been decided to be retained in the Annual Confidential

Report of the petitioner for the period between 1.4.2006 to

31.1.2007. It is further the case of the petitioner in this

petition that the challenge to retention of adverse entries is

mainly on the ground that the adverse entries are retained

ignoring Government circulars in this regard. The Reporting

Officer for some reason was acting in a biased manner

against the present petitioner and the bias is reflected in the

fact that though pursuant to a show cause notice issued by

the reporting officer, which was forwarded to the Revenue

Department as disciplinary authority of the petitioner, a

warning had been issued to the petitioner and the

instructions of the Government in this regard clearly state

that the departmental proceeding culminating in issuance of

warning should not be reflected in the Annual Confidential

Report of the concerned officer, yet, in spite of the warning

already issued by the Revenue Department, the Reporting

Officer at a later stage incorporated only the fact of having

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

issued show cause notice against the petitioner. It is further

the case of the petitioner in this petition that there are four

adverse entries for different columns. All the four are issued

in clear violation of Government instructions which fact has

not been appreciated by the Reviewing Officer and the

respondent as accepting authority and therefore, the retention

of adverse entries by the respondent authorities is bad in

law. Hence, the present petition has been preferred.

4. Heard Mr. A.R. Rockey, learned advocate for the

petitioner and Dr. Pooja Ashar, learned Assistant Government

Pleader for the respondent - State.

SUBMISSIONS ON BEHALF OF THE PETITIONER:- 5.1 Mr. A.R. Rockey, learned advocate for the petitioner

has submitted that present petition is filed regarding the

entries, which are by way of adverse remarks made in

Service Book (Annual Confidential Report) of the petitioner,

which is based on earlier warning, which is not permissible

in law. He has submitted that time limit prescribed in

Clause 8 of the G.R. of the year 2008 was not adhered to by

the authorities. He has submitted that contentions raised in

the representation made by the petitioner was not properly

considered and dealt with by the authorities. He has further

submitted that the adverse entry is based on warning which

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

is impermissible in view of the specific provision of G.R.

which is available on the record. He has further submitted

that ephemeral role is not maintained by the reporting

authority. He has submitted that assessment done by the

reporting and the reviewing officer after a delay of more

than 11 months dehors the schedule fixed by the State

Government, which is clearly against all purpose of issuing

adverse entries and, therefore, the same is required to be

interfered with. He has relied on the judgment of the Hon'ble

Apex Court in the case of B.R. Kulkarni vs. Government of

Gujarat reported in 1978 (2) GLR 1021, more particularly,

paragraph 11 of that judgment is relevant and has submitted

that the confirming authority had not taken any objective

decision after full application of mind on the issues put for

its consideration and had failed to take into consideration

that the reviewing officer had not visited Surat during flood

of the year 2006 and had no material except the remarks of

the reporting officer while issuing the adverse entry. He has

submitted that the reviewing officer had not taken care to

find out whether notice as referred by the reporting office

has been acted upon by revenue department. Therefore, he

has submitted that the prayers in the present petition are

required to be allowed.

5.2 Furthermore, he has, by referring to the contents of the

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

affidavit-in-rejoinder, submitted that the period in question is

between 01.04.2006 to 3.1.2007 and the petitioner was

informed about issuance of adverse entries vide

communication dated 25.02.2008. He has submitted that as

per Government Circular dated 19.03.2004, the Reporting

Officer ought to have completed writing of the A.C.R. by

30.04.2007, whereas, the Reviewing Officer should have

completed her review by 15.05.2007. Therefore, he has

submitted that the said circular has been followed in its

breach, that the adverse entry had been informed to the

petitioner after approximately nine months from the schedule

fixed by the Government. He has relied on the judgment

dated 27.09.2012 passed in Letters Patent Appeal No.2338 of

2009 in Special Civil Application No. 11188 of 2009 and has

submitted that more particularly, paragraphs 11 to 14 are

relevant. He has also relied upon the decision of this Court

in the case of B.M. Rajvanshi vs. State of Gujarat reported

in 2016 (0) AIJEL-HC 234032, more particularly, paragraphs

13 and onwards are relevant and has submitted that in view

of this, the present petition is required to be allowed on the

ground of delay in communication of adverse remarks as well

as on the aspect of warnings, which is issued on the earlier

occasion, that cannot be considered while writing Annual

Confidential Report. Hence, he has prayed to allow this

petition.

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

SUBMISSIONS ON BEHALF OF THE RESPONDENT:-

6.1 Per contra, Dr. Pooja Ashar, learned Assistant

Government Pleader for the respondent - State has strongly

opposed the submissions made at the bar by learned advocate

for the petitioner and has submitted that such submissions

made at the bar are misconceived are misconceive and

erroneous in the eyes of law. She has submitted that on the

basis of materials available on the record, the authorities

have rightly come to the conclusion regarding ACR, which is

under reference of the present petition for the period of

01.04.2006 to 03.01.2007. She has further submitted that

while writing the ACR of the petitioner, the Reporting Officer

has rated the petitioner "Poor" against the column 4(i) of the

ACR and while doing so, the Reporting Officer has made a

mention of the fact that the petitioner shirked responsibility

during the severe flood in Surat during the year 2006. She

has further submitted that the petitioner was served a notice

and the said fact was informed to the Revenue Department

about the shirking of the responsibility and dereliction of

duty vide letters dated 19.9.2006 and 06.12.2006 by the

Reporting Officer. The Revenue Department examined the

matter independently and accordingly, issued a warning to

the petitioner mentioning that the lapses committed by the

petitioner should not recur in future. She has further

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

submitted that it is a matter of record that the petitioner

did not represent against the warning issued to him and that

the petitioner had no option but to accept the warning. From

the same, it clearly confirms and justifies the remarks

recorded by the Reporting Officer in Entry No.4(i) of the

ACR of the petitioner. She has further submitted that it is a

matter of technicality whether the Reporting Officer

mentioned about the warnings issued to the petitioner in the

ACR or not. In fact, the Government Circular, which the

petitioner has quoted also mentions that if a formal penalty

has not been inflicted and only a warning has been given

then no reference thereof should be made in the ACRs.

6.2 She has further submitted that the Circular dated

8.3.1982 relied upon by the petitioner is in a different

context and the same deals with the matter of disciplinary

proceedings initiated against an employee which finally

culminates in issuance of a warning. She has further

submitted that in such cases, according to the Circular,

reference of the warning given to the employee should not be

made in the ACR. It is obvious also because if a copy of the

warning is kept in the ACR or a reference is made about it

in the ACR it would have all the attributes of a formal

penalty of censure. In the present case also, the petitioner

was given a warning and not a formal penalty of censure

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

and therefore, it is obvious that no reference thereof could

have been made by the Reporting or the Reviewing Officer in

the ACR. She has further submitted that the petitioner on

his part has accepted the warning which further corroborates

the adverse remarks under reference whereby the overall

assessment "Poor" made by the Reporting Officer in the

column No.10 of the ACR will have no significance for the

reasons that the Reviewing Officer had modified the overall

assessment of the "Poor" to that of "Good". In any case, with

a view to providing an opportunity to the petitioner, the

remark of "Poor" was communicated to the petitioner along

with other adverse remarks in the ACR. She has further

submitted that while considering the representation of the

petitioner, the remark of "Poor" was expunged mainly on the

ground that it had already been modified as "Good" by the

Reviewing Officer in the review part. She has further

submitted that so far as the duty entrusted to the petitioner

during the severe floods in Surat in the year 2006 is

concerned, every Officer in the Surat District was entrusted

one duty or the other in connection with the flood and,

therefore, it is obvious that the petitioner who was a Deputy

Collector in Surat Collectorate could not have been left

without any duty relating to the flood. She has further

submitted that the representation of the petitioner against

the adverse remarks in question is considered and remarks of

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

the Reporting Officer as well as Reviewing Officer were

obtained and both the Officers affirmed their views that the

remarks given to the petitioner were appropriate and

deserves to be retained and it is not that the respondent

depended merely on the remarks / comments offered by the

Reporting Officer and/or Reviewing Officer. The State

Government, after examining the material available on record,

the adverse remarks in the ACRs were retained.

6.3 Furthermore, she has submitted that regarding the

contention raised that there is non-application of mind in

examining the representation of the petitioner, it may be

necessary to refer that the Reporting Officer has given

adverse remarks on 23.12.2007 and the Reporting Officer has

assessed the performance and actual working of the petitioner

as a Deputy Collector (Protocol), Surat and as it is

discernible, the Reporting Officer was not at all satisfied with

the performance of the petitioner and, therefore, the

Reporting Officer has to issue two memos to the petitioner

on 23.8.2006 showing dissatisfaction about the performance of

the duty. The petitioner did submit his explanation in reply

to the aforesaid two memos but the Reporting Officer having

not satisfied, referred the matter to the Revenue Department

vide reports dated 19.9.2006 and 6.12.2006. She has further

submitted that from the record, it clearly transpires that the

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

petitioner was not attending to his duty conscientiously and

sincerely and that is how there has been issuance of memos

and warning in succession to the petitioner requiring him not

to commit the said lapses time and again. She has further

submitted that after thoroughly examining the representation

of the petitioner, the State Government took the decision

dated 17.11.2008 and if there was no application of mind

while examining the representation of the petitioner, then the

remark of "Poor" given in column No.10 in Part-III of the

ACR would not have been expunged by the Government. Not

only this, the Department took into account the contents of

the comments offered by the Reporting Officer and also the

fact that the petitioner had already been given a written

warning by the Revenue Department and, therefore, she has

further submitted that it is not correct to say that there is

no application of mind on the part of the State Government.

6.4 She has further submitted that as per the provisions of

Government Resolution dated 31.3.1989 of the GAD

Department, ephemeral rolls are to be maintained by the

Reporting Officer and are to be used while writing the ACRs.

Once the Reporting Officer sends the ACR after filling up the

reporting part, the ephemeral rolls are to be destroyed. In

any case, only the Reporting Officer can make a specific

submission on this point, as the Reporting Officer is not a

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

party to the present writ petition.

6.5 She has further submitted that the petitioner was in

the zone of consideration for promotion to the IAS but was

not found suitable for inclusion in the select list. This is

because of the fact that the promotion to the IAS is not

given with reference to the benchmark of "Good" or "Very

Good" or only on the basis of overall grading in ACR, it is

given on the basis of the principle of "selectivity" in which

all the officers in the zone of consideration are graded as

"Outstanding", "Very Good", "Good" or "Unfit" by the

screening committee of the UPSC after perusing relevant

service record of the officers in the zone of consideration. She

has further submitted that as such, if required numbers of

outstanding officers are available, then even the officer with

"Very Good" grading will not get promotion to the IAS. In

view of this, the petitioner's presumption in para 4.10 that

he will get promotion to the IAS, once the adverse remarks

in question are expunged, is without any basis.

6.6 In view of the above, she has, by referring to the

affidavit-in-reply and other materials available on the record,

submitted that the present petition is required to be

dismissed with heavy cost.

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

ANALYSIS AND FINDINGS:-

7.1 I have considered the rival submissions made at the bar

at length. I have perused the original file during the course

of argument.

7.2 It is fruitful to refer the decisions relied upon by the

learned advocate for the petitioner, which are as follows:

(a) B.R. Kulkarni (supra), more particularly, paragraph 11 of

that judgment is relevant, as under:

"11. In paragraph 28 of the petition the petitioner alleged that no ephemeral roll was maintained so far as he was concerned and that the confidential report was prepared arbitrarily at the end of the year without any relevant record for the same. Dr. Amin admits in his affidavit that no ephemeral roll was maintained by him and that nobody had shown him the ephemeral roll. Dr. Jindal's affidavit is not of any assistance on this point but even therein there is no denial of this specific allegation. The obvious conclusion, therefore, is that there was no day to day assessment of the performance of the petitioner nor was there any contemporaneous record of the assessment of such performance and further that when the adverse remarks in question were made, such material furnishing verifiable facts was not available to the Reporting Officer In my opinion, this is yet another infirmity which goes to

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

the root and in view of what immediately follows, vitiates the impugned adverse remarks as arbitrary for, in the absence of maintenance of ephemeral roll it was extremely difficult if not impossible, to make objective and full assessment of the petitioners performance during the entire period in question, particularly when three persons occupied the post of Dean during such period."

(b) B.M. Rajvanshi (supra), more particularly, paragraphs 13

and onwards are relevant, as under:

"13. As held by the Supreme Court, the very object of making and communicating the adverse remarks is to give to the Officer concerned, an opportunity to improve his performance, conduct or character, as the case may be. Inordinate delay in the communication of the adverse remarks would go against the spirit and object of such directory provisions and would not be a substantial compliance thereof. In the above case, though the Supreme Court did not go into the question of setting aside the adverse remarks on this ground, however it clearly recorded its disapproval of the inordinate delay in communicating the adverse remarks to the respondent therein.

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

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

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 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,

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

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 24 th 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

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

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 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 1 st 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)

15. In judgment dated 01.08.2012, passed by this Court in Special Civil Application No.485 of 2004 as well, this Court found that the explanation rendered by the respondents for

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

the late communication of the adverse remarks was not at all justified. It was held that the adverse entries would not come in the way of the petitioner for getting the higher payscale. This is what the Court held:

"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 payscale 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 maybe paid within a period of three months from today. Rule is made absolute accordingly with no order as to costs."

(emphasis supplied)

16. In a recent judgment of this Court, in the case of M.M. Suhanda Vs. State of Gujarat And Anr (supra), it is held as below:

"8. ....Taking stock of the entire situation, cumulatively, it needs to be held that the adverse remarks communicated after a period nearly 40 weeks from the stipulated period, they are required

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

to be set aside. Resultantly, the decision of the respondents of the adverse remarks made against the petitioner in his Confidential Report for a specific period from 21.1.1999 to 9.8.1999 which was communicated to him on 20.3.2001, is treated as illegal and having no effect in the eyes of law. Similarly, order made by the respondents as communicated to the petitioner under the letter dated 1.5.2001 rejecting his representation also is treated as invalid and held as having no effect. The adverse remarks in the petitioners Confidential Report are to be eliminated from the Confidential Report for the period in question."

(emphasis supplied)

17. The only reason for the delay in the communication of the adverse remarks is that the superior officers of the petitioner were busy and preoccupied with the activity of maintaining law and order problems and V.V.I.P Bandobast. These can hardly be considered to be convincing reasons as their very basis is vague and general in nature. Even otherwise this justification goes against the Government Resolution dated 31.03.1989 and 01.05.2004. The Government Resolution dated 02.02.2005 which has modified the Government Resolution dated 31.03.1989 insofar as the method of grading and assessing the Officer under consideration is concerned retains the stipulation that adverse remarks have to be communicated to the person concerned within six weeks. The instructions of the State Government in this regard have not undergone any change

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

and have remained the same. It was, therefore, incumbent upon the respondents to follow the instruction contained in the abovementioned Government Resolutions instead of making excuses that they were busy in solving law and order problems and in the V.V.I.P. Bandobast. The justification, if it can be termed as such, is absolutely without merit and cannot be accepted.

18. The judgment cited by the learned Assistant Government Pleader in the case of Hardev Singh Vs. Union of India And Another (supra) is regarding the proposition that the employee has a right to be considered for promotion but can claim no absolute right to be promoted. This proposition of law is not disputed but will not be relevant in the present case as the issue herein is the late communication of adverse remarks.

19. Taking into consideration the above factual and legal position and as there is no justifiable reason coming forth from the respondents regarding the delay in the communication of the adverse remarks, such delay cannot be condoned and the adverse remarks are required to be eliminated from the Annual Confidential Report of the petitioner for the period in question, on this ground alone.

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

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

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. 21. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs."

7.3 It transpires that the petitioner is relying on mainly

two contentions; first is late communication of the adverse

remarks by the authorities to the petitioner and the second

is that the warning cannot be considered while writing the

Annual Confidential Report.

7.4 It also transpires from the record that the petitioner

has not discharged his duty with utmost seniority and

conscientiously when the duty was assigned at the time of

flood in Surat. The record speaks that pursuant to that,

warning is issued and report is also made to the Revenue

Department. After the remark, which is mentioned as "Poor"

in the ACR by the Reporting Authority, the Reviewing

Authority has considered the same and made improvement by

making it as "Good". Therefore, it cannot be said that there

is non-application of mind, which is considered after applying

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

the mind and taken into consideration the representation

made by the petitioner.

7.5 Merely because the contention is now raised that this

adverse entry has been informed the petitioner at the belated

stage, which is not permissible. To consider this contention,

this Court has called for the original file and also one set of

xerox copy of the original file for perusal of this Court. On

perusal of the file, it transpires from the record that date of

birth of the petitioner is 24.04.1955 and the date of

retirement of the petitioner is 30.04.2013 and the petitioner

has retired as Member Secretary, NRG Foundation,

Gandhinagar. The initial posting of the petitioner was as

Deputy Collector (Protocol), Collectorate, Surat from

08.05.2003 to 03.01.2007. It also transpires from the record

that the reporting authority is one IAS office i.e. Vatsala

Vasudeva, Collector, Surat from the period 16.02.2005 to

30.07.2007. The reviewing authority is one IAS officer,

Vilasini Ramchandran, was was Principal Secretary, Revenue

Department for the period 18.07.2006 to 09.04.2008. It also

transpires that the petitioner is required to submit self-

appraisal on or before 20.04.2007 as prescribed vide GAD

Circular dated 19.03.2004, which was not submitted by the

petitioner. The appraisal by the reporting officer is dated

23.12.2007. Thereafter, the appraisal by reviewing authority is

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

also done, however, no date is mentioned. In the said

column, which is part of the record, which is produced by

way of separate file before this Court for perusal of this

Court, it transpires that the adverse remark was

communicated to the petitioner on 25.02.2008. The petitioner

is required to submit his representation against the adverse

remarks on or before 06.04.2008, however, on 06.04.2008, the

petitioner has sought for extension of time for submission of

representation upto 15.08.2008. Extension up to 15.07.2008

has been granted vide letter 03.05.2008, which is addressed

to Shri B.B. Dwivedi returned by Postal authority as the

addressee was on leave. Thereafter, letter was returned to

Collector, Rajkot to serve the letter dated 03.05.2008 to Shri

Dwivedi and that had happened on 10.06.2008. Thereafter, it

transpires that on 30.06.2008, the Collector, Rajkot has

intimated that GAD letter dated 03.05.2008 has been served

to Shri B. B. Dwivedi. It also transpires from the record that

on 15.07.2008, B.B. Dwivedi has made representation against

the adverse remarks with a request to expunge them. In the

meantime on 26.06.2007, the Revenue Department has issued

a warning to be cautious not to repeat such things in future.

Thereafter, it transpires that on 31.07.2008, a letter was

written Smt. Vatsala Vasudeva, Labour Commissioner, and at

the relevant point of time, Collector, Surat to offer opinion

regarding adverse remarks noted by her in the PAR with

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

reference to representation dated 15.07.2008 submitted by

Shri B. B. Dwivedi. It also transpires that on 14.08.2008,

Smt. Vatsala Vasudeva, Commissioner Labour has expressed

an opinion to retain the adverse remarks noted by her in the

PAR of Shri Dwivedi after considering representation of Shri

Dwivedi. It also transpires that on 25.08.2008, a letter was

written to Smt. Vilasini Ramchandran, Additional Secretary

and Financial Advisor, Ministry of Civil Aviation, at New

Delhi, the then Principal Secretary, Revenue Department to

offer her opinion regarding adverse remarks concurred by her

in the PAR with reference to representation dated 15.07.2008

submitted by Shri B. B. Dwivedi. It also transpires that on

18.09.2008, Smt. Vilasini Ramchandran, working as Additional

Secretary, New Delhi has opined to abide by the Collector's

remarks in this context. Accordingly, on 17.11.2008, a

memorandum has been issued to retain adverse remarks

noted in PAR of Shri B. B. Dwivedi. Therefore, considering

abovementioned chronology of events, though this issue is not

specifically dealt with by the respondent-authority in affidavit-

in-reply, from the original file, the abovementioned events

indicates that continuous procedure was going and, therefore,

after getting final opinion form the reporting authority as

well as reviewing authority pursuant to the representation

made by the petitioner, the remarks were conveyed and in

that also, there is delay due to initially notice is not served

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

to the petitioner due to petitioner has changed the addressed

and thereafter, it was served and, therefore, there is some

delay in procedure. Therefore, considering the judgment

rendered in the case of B.M. Rajvanshi (supra), which is

relied by the petitioner; there is no quarrel about the ratio

of that judgment, but considering the abovementioned events,

it cannot be said that there is deliberate inordinate delay in

communicating the adverse remarks and, therefore, this

judgment is not helpful to the present petitioner in any

manner and, therefore, the contention raised regarding the

communicating the adverse remarks after such delay is not

acceptable in the facts and circumstances of the case.

7.6 One more aspect that the aspect of warning which is

clarified by the respondent in his affidavit-in-reply as well as

during their submission, that speaks about the fact that the

issues which are not resulting into formal penalty under the

Discipline and Appeal Rules. The circular dated 8.3.1982

which is relied by the petitioner pertains to that eventuality.

In such cases, according to the circular, reference of the

warning given to the employee should not be made in the

ACR. In the present case also, the petitioner was given a

warning and not a formal penalty of censure and therefore, it

is obvious that no reference thereof could have been made by

the Reporting or the Reviewing Officer in the ACR.

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

7.7 It is fruitful to refer the necessary averments made in

affidavit-in-reply, more particularly, paragraphs 4.5 to 4.12

are relevant, which read as under:

"4.5 I respectfully say that the overall assessment 'Poor' made by the Reporting Officer in the column No. 10 of the ACR will have no significance for the reasons that the Reviewing Officer had modified the overall assessment of the 'Poor' to that of 'Good'. In any case, with a view to providing an opportunity to the petitioner, the remark of 'Poor' was communicated to the petitioner along with other adverse remarks in the ACR. I further respectfully say that while considering the representation of the petitioner the remark of 'Poor' was expunged mainly on the ground that it had already been modified as 'Good' by the Reviewing Officer in the review part. I respectfully say that so far as the duty entrusted to the petitioner during the severe floods in Surat in the year 2006 is concerned, it may be stated that every Officer in the Surat District was entrusted one duty or the other in connection with the flood. In fact, a large number of officers were sent to Surat to deal with the serious situation there and it is obvious that the petitioner who was a Deputy Collector in Surat Collectorate could not have been left without any duty relating to the flood.

4.6 I respectfully say that while examining the representation of the petitioner against the adverse

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

remarks in question, remarks of the Reporting Officer as well as Reviewing Officer were obtained and both the Officers affirmed their views that the remarks given to the petitioner were appropriate and deserves to be retained. However, it is not, that the respondent depended merely on the remarks / comments offered by the Reporting Officer and/or Reviewing Officer. The State Government, after examining the material available on record viz. the remarks of the Reporting Officer, the reports of the Reviewing Officer, the warning by the Revenue Department, etc., the adverse remarks in the ACRs were retained. I further respectfully say that I deny that the action of the State Government retaining the adverse remarks is arbitrary and illegal. In this behalf, I respectfully say that the order regarding retention of the adverse remarks has been passed in accordance with the standing instructions on the subject of ACR writing and also after following due procedure as prescribed and thus, there is no violation of any of the provisions of the Government Resolution.

4.7 I respectfully say that there has been a repetition of the factual narration in para 4.1 onwards. I respectfully say that the petitioner has made an allegation against the Reporting and Reviewing Officer to the effect that the said officers did not have adequate grounds or justification to give the adverse remarks. I further respectfully say that it has been the case of the petitioner that there has been no ground or justification available to the State Government for retaining the adverse remarks while examining the

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

representation of the petitioner and thus, there has been non-application of mind on the part of the State Government. In this behalf, it may be stated that the Reporting Officer has given adverse remarks on 23.12.2007 and the Reporting Officer has assessed the performance and actual working of the petitioner as a Deputy Collector (Protocol), Surat and as is discernible the Reporting Officer was not at all satisfied with the performance of the petitioner. That the Reporting Officer has to issue two memos to the petitioner on 23.8.2006 showing dissatisfaction about the performance of the duty. The petitioner did submit his explanation in reply to the aforesaid two memos but the Reporting Officer having not satisfied referred the matter to the Revenue Department vide reports dated 19.9.2006 and 6.12.2006. Annexed hereto and collectively marked as Annexure-l are the copies of the said two reports dated 19.9.2006 and 6.12.2006. It is pertinent to note that it is clear from the record that the petitioner was not attending to his duty conscientiously and sincerely and that is how there has been issuance of memos and warning in succession to the petitioner requiring him not to commit the said lapses time and again.

4.8 I respectfully say that the State Government after thoroughly examining the representation of the petitioner took the decision dated 17.11.2008. 1 respectfully say that so far as the decision is concerned, it may be stated that if there was no application of mind while examining the representation of the petitioner, then the remark of 'Poor'

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

given in column No.10 in Part-IIll of the ACR would not have been expunged by the Government. Not only this, the Department took into account the contents of the comments offered by the Reporting Officer and also the fact that the petitioner had already been given a written warning by the Revenue Department. In the face of these facts, the logical course of action was to go by the assessment done by the Reporting Officer in the ACR and to retain the adverse remarks and just because the adverse remarks were retained, the petitioner cannot say that there was no application of mind on the part of the State Government.

4.9 I respectfully say that in the entire petition the petitioner has tried to project a picture that the work of the petitioner as a Deputy Collector (Protocol) was exemplary but the following sequence of events may be looked at, for adjuding the appropriateness or otherwise of the adverse remarks under reference:

(i) Devastating waters of Tapi River gushed through Surat City on 8.8.2006

(ii) All the District Officers, especially the officers of the Collectorate, Surat and Municipal Corporation, Surat were required to deal with the situation from the word go. However, the petitioner was not contactable even to the Collector, Surat i.e. the Reporting Officer.

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

(iii) A control room had been started in Vidya Bharati School on Bhatar Road, Surat from 9.8.2006 but the petitioner was not present in the Control Room on 10.8.2006

(iv) Hon. Prime Minister was to visit Surat on 11th August, 2006 but the petitioner was not contactable even then. In the absence of the petitioner, who was the Deputy Collector (Protocol), the Collector herself had to make all the arrangements for protocol during the planned visit of the Hon. Prime Minister on 11th August, 2006.

(v) Hon. Chief Minister was to visit the Surat District again along with other 7 cabinet Ministers on 15th and 16th August, 2006 but the Collector, Surat (ie. the Reporting Officer for the ACR) had not even been apprised of the details such as the itinerary of the programme, arrangements and planning done for the programme, etc.

(vi) The Collector. Surat (Reporting Officer) had to send a special vehicle to the Circuit House in the night of 14th August, 2006 to fetch the petitioner from the Circuit House to make him sit in the Control Room in Vidya Bharti School on Bhatar Road.

(vii) Rehearsal of the Independence Day programme was to be done on 14th August, 2006 as per the

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

standard drill. The petitioner as Deputy Collector (Protocol) was supposed to know about the Arrangements/progress. When the Additional Collector (Coordination) contacted him in the night on 14th August, 2006 on cell phone, the cell phone of the petitioner was switched off. The Collector, Surat herself had given instructions to the petitioner for doing the rehearsal of the programme on 14th August, 2006 but the petitioner did not take any action to ensure that such rehearsal was done or other preparatory work for the Independence Day celebration was done. The Flag Hoisting function was to take place in Bardoli taluka of Surat District and therefore, the petitioner was required to contact the Prant Officer, Vyara for the arrangements of the programme, but he did not do that.

4.10 The petitioner had shown utter negligence and dereliction of duty in the matter relating to an important National Programme such as Independence Day function. In view of the above mentioned details, it would be clear that the Collector, Surat was justified in giving the Adverse Remarks to the petitioner in the ACR under reference. It is not necessary that if an officer has done good work for most of the part of the reporting period, and has indulged in serious dereliction of duty in the demanding situation during a small part of the reporting period, the latter should be ignored and it should not be reflected anywhere including in his ACR. In fact, the gross negligence or serious dereliction of duty even for a day can

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

invite such remarks depending on the seriousness of the occasion.

4.11 I further respectfully say that with reference to the contents of Ground 4.7, as per the provisions of GR GAD dated 31.3.1989, Ephemeral Rolls are to be maintained by the Reporting Officer and are to be used while writing the ACRs; once the Reporting Officer sends the ACR after filling up the reporting part the Ephemeral Rolls are to be destroyed. In any case, only the Reporting Officer can make a specific submission on this point, as the Reporting Officer is not a party to the captioned writ petition, it would not be possible for the deponent of the present affidavit and the custodian of the ACR/GAD to make any comments on maintenance or otherwise of Ephemeral Roll.

4.12 I respectfully say that in past the petitioner was in the Zone of Consideration for promotion to the IAS but was not found suitable for inclusion in the select list. This is because of the fact that the promotion to the IAS is not given with reference to the benchmark of 'Good' or 'Very Good' or only on the basis of overall grading in ACR; it is given on the basis of the principle of "selectivity" in which all the officers in the Zone of Consideration are graded as 'Outstanding'. "Very Good', 'Good' or 'UNFIT' by the screening committee of the UPSC after perusing relevant service record of the officers in the zone of consideration. As such, if required numbers of outstanding officers are available, then even the officer with "Very Good" grading will not get promotion to the IAS. In view of this, the

NEUTRAL CITATION

C/SCA/8469/2009 JUDGMENT DATED: 22/09/2025

undefined

petitioner's presumption in para 4.10 that he will get promotion to the IAS once the adverse remarks in question are expunged is without any basis. In view of this, I say that the contention raised by the petitioner that he was in the zone of consideration for being nominated in the IAS cadre, is purely hypothetical which cannot be taken cognizance of at this juncture."

7.8 In view of the above, there is no controversy about the

judgments cited at the bar by learned advocate for the

petitioner and the same are binding to this Court, but

considering the peculiar facts and circumstances of the

present case, whereby the Reviewing Officer has also applied

its mind and improved the remarks of ACR from "Poor" to

"Good", it cannot be said that any prejudice is caused to the

petitioner.

7.9 Furthermore, considering the aspect regarding the

promotion to the post of IAS, though the petitioner is in

zone of consideration for the post of IAS, but the petitioner

could not be considered as other persons were having