M M SUHANDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short question that arises for the determination of this Court in this petition is whether late writing of ephemeral roll and consequently delayed communication of the adverse remarks would vitiate the act of administration.

(2.) The petitioner serving as a Private Secretary,(English Stenographer Grade -I) Class -II in the Gujarat Civil Services Tribunal, Gandhinagar, was communicated adverse remarks incorporated in his Confidential Report by letter dated 20.3.2001, which was for the period from 21.1.1999 to 9.8.1999. Representation was made by him against this on 30.3.2001 and respondent No.1 rejected his representation on 21.5.2001. By a notification dated 21.7.2001 i.e. after 2 months of the rejection of representation, the respondent No.2 herein was promoted to the post of Principal Private Secretary,Class -I on ad hoc basis, with effect from 1.5.2001 and the petitioner by his letter dated 26.7.2001 requested to the respondent No.1 to promote him to the said post, however, to no avail of his.

(3.) The petitioner challenged the adverse remarks incorporated in his Confidential Report as also the promotion of respondent No.2 essentially on the ground that the remarks had been communicated to him after a period of 18 months. He has relied heavily on the resolution dated 29.1.1977 that the remarks need to be communicated within 6 weeks. Reliance is also sought to be placed on the judgments of this Court to submit that the remarks communicated beyond 13 months need to be ignored at the time of promotion. Respondents on their appearance filed affidavit -in -reply and denied all the allegations. It is contended by respondents that before preparing select list for the promotion to the post of Principal Private Secretary, Class -I, adverse remarks had been communicated to the petitioner and the decision in this regard had been taken prior to 30.4.2001. After seeking the explanation of the petitioner, his case also was kept open by the Departmental Promotion Committee. He was informed to give explanation and after he submitted his reply and requested to expunge the remark, the said explanation was sent to the Reporting Officer, but he was not satisfied with the said explanation. The Reporting Officer was the then Additional Chief Secretary, Panchayat Rural Housing and Rural Development Department, he however chose to uphold the said remarks. In view of the decision taken by the Government after due consideration of the letter of the petitioner as well as that of the Reporting Officer, at the relevant time, petitioner was not considered for the post of Principal Private Secretary. It is also contended further that as per the Government Circular dated 29.1.1977 adverse remarks need to be communicated to the Government servant/Officer as far as possible within 6 weeks' from the completion of the Confidential Reports for a particular financial year. Thereafter, he has to be given 6 weeks' time for representation and the decision thereon needs to be taken within a period 3 months from the date of receipt of the representation in that regard. In the instant case, according to the respondents, Confidential Report was received on 22.2.2001, the adverse remarks were communicated within a month on 20.3.2001 and on receiving reply of petitioner within 10 days, comments of the Reporting Officer were called for on 7.5.2001 and the final decision was communicated to the petitioner herein on 21.5.2011 which was before conclusion of 3 months' period. His name was again placed before the Departmental Promotion Committee but looking to the adverse remarks of Confidential Report from 21.1.1999 to 9.8.1999, the same was not recommended for the select list. This was also sent to the GPSC subsequent to the representation of the petitioner. However, in view of the adverse remarks, advise was given to drop his name from the select list. Moreover, since the petitioner worked under the Additional Chief Secretary, there was no question of reviewing of his remarks by any other person. Ephemeral rolls, as per Form No.6, are divided into Part -I and Part -II. Part -I gives factual details and the assessment by the Reporting Officer is in Part -II. It is emphasized that in the case of the petitioner, there was no provision for writing Confidential Report by reviewing Authority as the petitioner worked under an officer who was a sole officer. It is further contended that merely because there has been delay in writing a Confidential Report that would not ipso facto vitiate or give rise to expungment of remarks in the present case.