Anit Kumar vs State Of Haryana & Ors
2023 Latest Caselaw 13994 P&H

                                                              2023:PHHC:110927
                                                                  MANOJ KUMAR
CWP No.592 of 2017                                              #1#
                                                                  2023.08.29 18:36



IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                               CWP No.592 of 2017
                                               Date of decision : 24.08.2023

Anit Kumar
                                                                      ....Petitioner
                                      Versus
State of Haryana and Ors.
                                                                   ....Respondents

CORAM : HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

                         ***

Present :-   Mr. Parveen Chauhan, Advocate for the petitioner.
             Mr. Saurabh Mohunta, DAG, Haryana.

            ***
HARSIMRAN SINGH SETHI, J. (ORAL)

In the present petition, the challenge is to impugned order dated

08.05.2014 (Annexure P.1) vide which first annual increment of the petitioner

was withheld due to adverse remarks recorded in his Annual Confidential reports

for the year 2005-2006 and 2006-2007; as well as orders dated 21.01.2016 (P.5)

and 20.09.2016 (P.7) passed by the Authorities, rejecting the representation and

also appeal filed against the said adverse remarks.

The petitioner was conveyed adverse remarks for the year 2004-

2005, as per which, serious deficiencies qua the working of the petitioner were

mentioned including the one recorded qua the integrity being doubtful. Said

remarks were assessed as average and below average. Taking note of the record

of the petitioner being not good, the petitioner was not held entitled for grant of

promotion, hence, no benefit under Assured Career Progressive Scheme has been

extended to him.

After the remarks were conveyed to the petitioner vide Annexure

P.1, the petitioner filed a representation before the Authorities concerned and the 2023:PHHC:110927 CWP No.592 of 2017 #2#

Director General, Jail, Haryana after considering all the facts rejected the said

representation vide order dated 21.01.2016 (P.5), which is under challenge in the

present petition. Even further, appeal made to the Government also stands

rejected vide order dated 20.09.2016, a copy of which is appended herewith as

Annexure P.7. The said order has also been impugned in the present petition.

The ground which has been taken by the petitioner to assail the adverse remarks

in the ACRs as well as the orders rejecting his appeal/representation is that the

petitioner was communicated the said remarks after such a long period and since

there was an inordinate delay in conveying the same, the said remarks cannot be

taken into account for any purpose much less than denying him the benefit of

higher scale under the ACP Scheme.

Learned counsel appearing for the respondents submits that the

remarks were conveyed to the petitioner against which the petitioner has already

filed a representation as well as appeal, which have been dismissed by the

Authorities concerned and once the adverse remarks against the petitioner have

attained finality and the same have been recorded in the Annual Confidential

Reports, the petitioner is not entitled for further promotion, thus the benefit under

ACP Scheme cannot be extended to him.

I have heard learned counsel for the parties and perused the paper

book with their able assistance.

Though it is settled proposition of law that in case, there are adverse

remarks recorded against an employee, they have to be conveyed to the

employee concerned for information as well as necessary action if the employee

is aggrieved against the recording of the same. In the present case, the remarks

have been conveyed to the petitioner against which he has availed the remedy of

filing appeal as well as representation to the higher authorities as well as 2023:PHHC:110927 CWP No.592 of 2017 #3#

Government but still the adverse remarks have been maintained by the

Authorities concerned. That being so, this Court is not in a position to set aside

the remarks merely on the ground that the same have been conveyed to him after

a long period. Further, it has been held by Hon'ble Supreme Court that such

uncommunicated adverse remarks should be given to the employee concerned so

as to enable him to make representation and if the employee remains successful

in getting adverse remarks expunged, the benefit should be extended. Even,

Hon'ble Supreme Court in its judgment passed in Civil Appeal No.7631 of 2002,

titled as Dev Dutt vs. Union of India and Others, decided on 12.05.2008, has

held that every entry in the A.C.R. of a public servant which has effect of being

treated as adverse must be communicated to him/her within a reasonable period,

so that he/she can make a representation for the upgradation of the said

confidential report. Only the benefit extended was of providing an opportunity to

the employee to file representation against the adverse remarks which option, in

the present case has already been exercised by the petitioner, who remained

unsuccessful in getting the remarks expunged. Relevant para of Dev Dutt's case

(supra) reads as under:

"47. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.

48. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months 2023:PHHC:110927 CWP No.592 of 2017 #4#

thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment".

In view of facts and circumstances of the present, no relief can be

granted to the petitioner as being prayed in the present petition.

Dismissed.

August 24, 2023                                 (HARSIMRAN SINGH SETHI)
manoj                                                  JUDGE

             Whether speaking/reasoned: Yes
             Whether Reportable : No