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Gujarat High Court
Palaviben Jayeshbhai Modi vs State Of Gujarat on 19 January, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3923 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
✓
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PALAVIBEN JAYESHBHAI MODI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS FORUM BIMAL SUKHADWALA, ASSISTANT GOVERNMENT PLEADER
for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
Date : 19/01/2026
ORAL JUDGMENT
1. Heard Ms. Harshal N. Pandya, learned Advocate for the
petitioner and Ms. Forum Bimal Sukhadwala, learned
Assistant Government Pleader for the respondent-State.
2. The present petition is filed under Articles 14, 16 and 226,
seeking the following reliefs:
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"A) Expunging the adverse remarks in the annual confidential reports
of the petitioner for the period from 1.4.2009 to 31.3.2010 as
communicated by the letter dt. 1.9.2012 and for the period from
1.4.2010 to 31.3.2011 as communicated by the letter dt.6.9.2010, and
declare that these adverse remarks can not be taken into
consideration at the time of considering the case of the petitioner for
promotion to class II post.
(B) During the pendency and final disposal of this petition, the
respondents may be restrained from considering the adverse remarks
in the annual confidential report of the petitioner for the period from
1.4.2009 to 31.3.2010 and from 1.4.2010 to 31.3.2011 while
considering the case of the petitioner for promotion to class II post
and, if already considered, then to reconsider her case ignoring the
above adverse remarks.
(C) During the pendency and final disposal of this petition, the
respondents may be restrained from promoting any person junior to
the petitioner to class II post without considering the case of the
petitioner ignoring the adverse remarks in her annual confidential
reports for the period from 1.4.2009 to 31.3.2010 and from 1.4.2010
to 31.3.2011.
(D) To grant such other and further reliefs as may be deemed fit."
3. SHORT FACTS :
3.1. The petitioner was serving as Office Superintendent under
respondent No. 2 at the time of filing of the petition and it is
reported that during the pendency of this petition, the
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petitioner, having attained the age of superannuation on 30th
June 2016, retired from service.
3.2. The petitioner was initially appointed to the post of Clerk on
15th May, 1981 and promoted as Senior Clerk on 25th
February, 1987 and thereafter got further promotion to the
post of Stamp Inspector and Office Superintendent on 5th
November, 1988 and 10th July, 1991, respectively.
3.3. The petitioner had been served with Annual Confidential
Report (ACR) for the periods between 1st April, 2009 and 31st
March, 2010, and 1st April, 2010 and 31st March, 2011, by
respondent No. 2 on 1st September 2012 and 6th September
2012, respectively.
3.4. The petitioner made representations to respondent No. 2 on
29th October 2012 and 6th November 2012, respectively,
wherein, apart from questioning the ACRs prepared by
respondent No. 2 for the aforesaid years, she also raised a
grievance about the non-supply of the ACRs for the said
period within the stipulated time. It appears that without
taking note of the aforesaid, vide communication dated 22nd
January, 2013, respondent No. 1-State has maintained the
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ACRs for the said period as approved by the Reviewing
Authority. Hence, the present petition.
4. SUBMISSIONS OF THE PETITIONER:
4.1. Ms. Pandya, learned Advocate for the petitioner, would submit
that due to inordinate delay in communication of the ACRs by
respondents to the petitioner, it frustrated her right to make
suitable and effective representation, as well as she had no
chance to improve herself in her work. It is submitted that the
delayed communication of the ACRs prejudicially affected the
petitioner's right to be considered for promotion to the post of
Chief Inspector of Stamps.
4.2. Ms. Pandya, learned Advocate, would further submit that as
per Government Resolution dated 31st March 1989, read with
circulars dated 6th March 2004 and 1st May 2004, respectively,
respondent No. 2 was supposed to prepare the ACRs not later
than 20th May 2010 for preparation of ACR for the year 2009-
10 and likewise, 20th May 2011 for the period 2010-11.
Whereas, respondent No. 2 had communicated both these
ACRs on 1st September, 2012 and 6th September, 2012, which
is in contravention of the aforesaid Government Resolution
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and the Circulars. It is submitted that the State, with a laudable
object, framed the guidelines as to how to prepare the ACR by
authority and to communicate within the stipulated time to
employee concerned, but having not observed such time limit,
it violates the fundamental rights of the petitioner to question
the entries made in the ACRs for the respective years and
eventually, it affects her right to be considered for the next
promotion, i.e., Chief Inspector of Stamps.
4.3. Ms. Pandya, learned Advocate, would further submit that as
per settled legal position of law and number of decisions of this
Court and the Hon'ble Apex Court, it is clearly laid down that
in a case where there is delay-late communication of ACRs
and/or non-communication of ACRs, as the case may be, it
amounts to violation of the principles of natural justice. In such
an eventuality, the respondent cannot rely upon the adverse
remarks recorded in the respective ACRs while considering the
promotion of the petitioner.
4.4. To buttress her argument, Ms. Pandya, learned Advocate
would rely upon the following judgments:
(i) State Of Haryana V/s. P C Wadhwa, Ips, Inspector General
Of Police reported in AIR 1987 SC 1201;
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(ii) Abhijit Ghosh Dastidar V/s. Union of India and others
reported in (2009) 16 SCC 146;
(iii) C N Chavda Versus Director General Of Police, Gujarat
State reported in (1992) 1 GLH 209, [1990 LawSuit(Guj)
189];
(iv) I. H. Mehta V/s. State Of Gujarat reported in 2001 2 GLR
1305, [2000 LawSuit(Guj) 614];
(v) Manoj Sitaram Lokhande V/s. State of Gujarat reported in
2016 (0) AIJEL-HC 236565;
(vi) Susheel Patil V/s. Indian Railway Catering and Tourism
Corporation Ltd. reported in 2026 (0) AIJEL-HC 252617.
4.5. Making the above submissions, Ms. Pandya, learned Advocate,
requests this Court to allow the present petition
5. SUBMISSIONS OF THE RESPONDENT NO.1-STATE:
5.1. Per contra, Ms. Sukharwala, learned AGP, would submit that
there is no delay in communicating the ACRs to the petitioner,
inasmuch as, upon preparation of the ACRs for the respective
years and was duly reviewed and confirmed by the Reviewing
Authority, then immediately, the same were sent to the
petitioner. It is submitted that the ACRs were finalized and
reviewed by the competent authority-respondent No. 2, on
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28th August 2012 for the year 2009-10 and the same was
communicated within four days to the petitioner. Whereas, for
the year 2010-11, it was finalized and reviewed by respondent
No. 2 on 29th August 2012 and within seven days thereafter,
the ACR was sent to the petitioner. Thus, there was no delay as
such on the part of the respondents to communicate the ACRs
for the respective years to the petitioner.
5.2. Ms. Sukharwala, learned AGP, would further submit that so
far as the claim of not granting promotion to the petitioner on
the higher post is concerned, there is an alternative efficacious
remedy available to the petitioner to approach the Gujarat
Civil Service Tribunal.
5.3. Ms. Sukharwala, learned AGP, would further submit that
when the respondents have observed the principles of natural
justice by sending the ACRs, and after considering the
representation of the petitioner, had confirmed the entries
made in ACRs by the respondent-State, thereby no fault can be
found either in the procedure or in the observance of the
principles of natural justice by the respondent.
5.4. Making the above submissions, Ms. Sukharwala, learned AGP,
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requests this Court to reject the present petition.
6. No other and further submissions are being made.
7. Having heard the learned Advocates appearing for the
respective parties and having perused the pleadings and
documents available on record, it remains an undisputed fact
that the ACRs for the year 2009-10 and 2010-11 were
communicated to the petitioner in succession on 1st September
2012 and 6th September 2012, respectively. The Government
Resolution dated 31st March 1989, more particularly Clause
11, would indicate that on preparation of the ACR, the same
shall be communicated to the petitioner within six weeks. As
far as, the preparation of the ACR is concerned, it is also
provided as to how it will have to be prepared. As per Sub-
clause (3), (6) & (7) of Clause No.8, as applicable to non-
Gazetted employees of the State, the reporting authority shall
have to prepare and send ACR to the Reviewing Authority by
20th April. The Reviewing Authority shall review it before 15th
May of every year and in turn inform to the departmental head
about completion of reviewing work by 20th May of each year.
It is also observed that in a case for any reason, the work of
review is not completed in time limit, the higher officials should
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be informed of such fact along with reasons thereof. No such
reasons have been forthcoming in the present case, as nothing
has been stated in this regard by the respondents in its reply.
8. The fact remains that both these ACRs for the year 2009-10
and 2010-11, respectively, were communicated to the petitioner
much after the stipulated period of time as mentioned in the
aforesaid Resolution dated 31st March 1989. The aforesaid
circulars dated 6th March 2004 and 1st May 2004 also reiterate
the procedure set out in the aforesaid Resolution. Thus, it was
incumbent upon the respondents to prepare the ACRs within
the stipulated time and to communicate it to the petitioner
within the stipulated time as aforesaid. It cannot be gainsaid
that the ACRs were not communicated within the stipulated
time. This amounts to violation of the principles of natural
justice.
8.1. At this stage, it would be apt to refer to the decision of the
Coordinate Bench of this Court in the case of Manoj Sitaram
Lokhande (supra), wherein, in somewhat identical factual
scenario, having found that there was late communication of
the ACR by the respondent-State beyond time as stipulated in
the aforesaid Government Resolution dated 31st March, 1989,
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it held thus:
"12. From the above, it is clear that the
entries of "Good" that have been considered to
be adverse in the case of the petitioner, were
required to be communicated to him within the
stipulated period of time. As per the
Government Resolution dated 31.03.1989, the
stipulated period of time for the communication
of adverse remarks is six weeks. The DPC, in
the present case, met on 19.03.2011 and the
adverse remarks were communicated to the
petitioner on 17.10.2012, which is admittedly
beyond the stipulated period of time. At the
relevant period of time, the petitioner had no
opportunity to represent against the said
remarks. By communicating the remarks much
beyond the stipulated date and then rejecting
the representation of the petitioner against
the said remarks would not cover up the lacuna
in the procedure adopted by the respondents.
The law of the land would take effect and the
uncommunicated remarks of "Good", which have
been considered adversely in the case of the
petitioner, cannot be taken into consideration
and are required to be expunged in view of the
principles of law laid down by the Supreme
Court in the above judgments.
14. Taking into consideration the above settled
principles of law and the fact that the
petitioner was not communicated the adverse
remarks of "Good" within the stipulated period
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of time, the following order is passed:
The uncommunicated "Good" remarks in the
ACRs of the petitioner for the years 2001-
02, 2002-03, 2003-04 and 2007-08, shall
stand expunged. The case of the petitioner
shall be considered on the basis of the
"Very Good" remarks in his ACRs for the
years 2005-06, 2006-07, 2008-09 and 2009-
10. Consequently, the petitioner shall be
granted the deemed date of promotion, with
consequential benefits, from the date on
which his juniors, if any, were promoted,
pursuant to the meeting of the DPC dated
19.03.2011. The entire exercise be
completed as expeditiously as possible and
without avoidable delay."
(emphasis supplied)
8.2. There are other decisions also cited by Ms. Pandya, learned
Advocate for the petitioner, which strengthen her argument
and are directly applicable to the facts of the present case.
Nonetheless, I would like to refer to the latest judgment in
point of time, i.e., Susheel Patil (Supra). Wherein, after
considering the various case laws on the issue germen in this
case, including the celebrated judgment of the Hon'ble Apex
Court in the case of Dev Dutt V/s. Union of India reported in
(2008) 8 SCC 725, it held thus:
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"11. Having considered the aforesaid case law, the
principle deduced from their ratios is that the
action of the State towards its employee must be
just and fair, and whenever there is unfair action
on the part of the State or its instrumentality
observed by the Court, the same would be
considered in violation of the principles of natural
justice. In such circumstances, the action requires to
be struck down. It is also held that the rule of principles
of natural justice are flexible and it would be the duty
of the Court to see in each case as to whether the rules
of natural justice have been observed, inasmuch as,
whether the authorities acted fairly or not. As held
above, the purpose of communication of
ACRs/APARs every year within reasonable time to
a public servant is to help him to work harder and
achieve more, which helps him in improving the
work and to get better results. The purpose of
communicating the APARs would get frustrates if all
APARs are communicated in one lot to a public servant
as by doing so, neither the public servant had an
opportunity to effectively make his representation due
to unreasonable delay in getting such APARs, nor had a
chance to improve his work, thereby not helping him to
get it consider for promotion when not secured
minimum benchmark. Whenever, it has been observed
that the State or its instrumentality acted in unfair
manner, i.e., it communicates all relevant previous
years' APARs in one lot to its employee, the whole
object of making the entry in the APARs would be lost
due to inordinate delay made in its communication.
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Such an action on the part of the State or its
instrumentality cannot be approved or encouraged by
this Court as it is not fair by any means.
17. Having considered the aforesaid facts and
circumstances of the case and applying the ratios of the
aforesaid decisions to the facts of the present case, I
am of the view that the action of the respondent in not
communicating previous years' APARs within a
reasonable time to the petitioner prior to 2013 is
nothing but an unfair action on its part, which is
violative of the principles of natural justice. There is no
justifiable reason forthcoming from the side of the
respondent in not communicating the APARs within
reasonable time, this amounts to arbitrary action,
which is violative of Article 14 of the Constitution of
India. As such, right of the petitioner either to
effectively made representation or to improve his
standards got severally affected due to high
handedness of the respondent by belatedly
communicated the APARs. Thus, in view of the
aforesaid, the action of the respondent impugned
in this petition is hereby struck down."
(emphasis supplied)
9. Thus, in view of the aforesaid facts and the law as it stands as
on date, I am of the view that the respondent-State has violated
the fundamental rights of the petitioner in not communicating
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the ACRs within the stipulated time, thereby, her right to be
considered for further promotion to the post of Chief Inspector
of Stamps is severely affected, as both the aforesaid ACRs
adverse against the petitioner, had come in the way of
petitioner to be considered for further promotion. As a
consequence, both these ACRs for the period 2009-10 and
2010-11 are quashed and set aside. Meaning thereby, the entries
made in both these ACRs shall stand expunged. Consequently,
the petitioner is entitled to be considered for promotion to the
post of Chief Inspector of Stamps.
10. The objection of the respondent-State as regards alternative
remedy available to the petitioner is concerned, the petitioner is
not considered for promotion due to the aforesaid ACRs and
now, it is expunged, the petitioner's right to be considered for
further promotion arises. At the same time, it is reported to this
Court that the petitioner is already retired from her service on
30th June, 2016, i.e., during the pendency of this petition, as
attained the age of superannuation. In light of the aforesaid
facts and as such the impugned action of the respondent-State
is violative of Articles 14 and 16 of the Constitution of India
and it also violates the fundamental rights of the petitioner to
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be considered for promotion, I am not at all impressed with the
arguments of Ms. Sukhadwala, learned AGP, which is turn
down. There is no justifiable reason to relegate the petitioner to
the alternative remedy, that too after so many years.
11. In view of the foregoing reasons, the entries made in the ACRs
for the years 2009-10 and 2010-11, are hereby expunged as
aforesaid. As a consequence, the case of the petitioner for
further promotion to the post of Chief Inspector of Stamps
requires to be considered by the respondents.
12. The respondents are hereby directed to hold meeting of the
Departmental Promotion Committee (DPC) within one month
from today to consider the case of the petitioner for promotion
from the post of Office Superintendent to Chief Inspector of
Stamps, without taking into account the adverse entries of the
year 2009-10 and 2010-11. Nonetheless, the criteria which
requires to be considered and taken into account by the DPC
prevailing at the relevant of time when junior of the petitioner's
got promoted, may be considered.
13. If the petitioner is found eligible for the promotion from the
post of Office Superintendent to Chief Inspector of Stamps, an
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appropriate order shall be passed by the competent authority-
respondent in this regard within one from the receipt of the
recommendation of DPC. Such promotion shall be given effect
from the date on which the junior of the petitioner was
promoted, albeit without any monetary benefits till retirement
of the petitioner, yet, all notional benefits, including continuity
of service in the promotional post till retirement of the
petitioner, shall be extended by the respondents. All
consequential benefits as regards difference of all the retiral
benefits including pension shall be paid to the petitioner within
two months from the passing of the aforesaid order conferring
the promotion to the petitioner (if any).
14. In view of the foregoing conclusion, the present petition is
allowed. Rule is made absolute, to the aforesaid extent. There
shall be no order as to costs.
(MAULIK J. SHELAT,J)
NILESH
