SATISH J. PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The learned Counsel for the petitioner submitted that there is gross and inordinate delay on the part of the respondent authorities in communicating the adverse remarks made in petitioner's confidential records for the year 1976-78. So far as the adverse entries for the year 1975-76 are concerned that is not challenged in this petition and it is, therefore, not necessary for me to express any opinion in that regard. As regard adverse entries for the years 1976-77 and 1977-78, however, the challenge requires to be upheld. Recently, a similar question arose before me in the case of C. N. Chavda v. Director General of Police, Gujarat State, reported in 1992(1) GLH 209. In that case, the confidential remarks of the petitioner for the period between October 13, 1986 and March 31, 1987 were communicated to the petitioner on May 21, 1988 that is after about 13 months. The question before me was whether communication of such adverse remarks after period of about 13 months was proper and in accordance with the Government resolution or not. Relying upon the decistion of the Supreme Court in the case of State of Haryana v. P. G. Vadhwa, AIR 1987 Supreme Court 1201, I held that the adverse remarks in the confidential records of an employee must be communicated to him within the reasonable period. It is true that the resolution issued by the Government for communicating such entries are not statutory in nature and it is equally true that they are not mandatory in its character. At the same time, however, they cannot altogether be ignored also. However, if a provision is mandatory, strict and exact compliance is necessary. If on the other hand, a provision is directory, substantial compliance would be sufficient. But if the resolutions of the Government provided that the adverse remarks should be communicated within the reasonable period of six months from the date of making of such remarks and that if any representation is made by the aggrieved government servant within the period of six weeks from the receipt of the remarks and in absence of sufficient and reasonable ground for not making representation within the stipulated period, said period cannot be extended, one fails to understand how the same or similar analogy would not be applicable while adverse remarks were required to be communicated to the government servant also. Again such reading of the resolution would be in consonance with the underlying object of communication of the adverse remarks to the Government servant with a view to affording opportunity of improving his performance, conduct or character, as the case may be. As observed in the case of Shri P. C. Vadhwa (supra), in that case, adverse remarks were communicated after about 27 months though they were required to be communicated within the period of seven months and thus, there was delay of about four times period prescribed under the rules which was held to be unreasonable by the Supreme Court. Similarly, in the case of C. N. Chavda, (supra), instead of six weeks, those remarks were communicated by the Government after about 13 months which was held to be grossly and unreasonably delayed by me and those adverse remarks were ordered to be ignored.

(2.) In the instant case, instead of six weeks, the adverse entries in the confidential records of the petitioner for the year 1977-78 were communicated to the petitioner after about 26 months while for the year 1976-77, they were communicated after about 44 months. Therefore, respectfully following the decision of Hon'ble the Supreme Court in the case of P. C. Vadhwa (supra), and also following the decision in the case of C. N. Chavda (supra), I am of the opinion that this petition requires to be allowed. The respondent authorities are required to be directed to ignore the adverse remarks made in the confidential records of the petitioner for the years 1976-77 and 1977-78. Rule made absolute.