RANA SHAKTISINGH KHANUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner joined the services of the Government of Saurashtra as Sub-Overseer by order of the Director of Agriculture Government of Saurashtra dated 20.3 and he joined on the said post on 4.4.56. The petitioner was absorbed and allocated to the services of the State of Bombay and was appointed as Agriculture Assistant in Group-II- as post equivalent to that of Sub-Overseer. The petitioners case is that in the State of Saurashtra itself Shri J.V. Sutaria was appointed after the petitioner as Sub-Overseer with effect from 6.4.56. He too was likewise absorbed in the State of Bombay as Agriculture Assistant. Later on both were allocated to the services of the State of Gujarat and they continued on the post of Agriculture Assistant in the service of the State of Gujarat from 1.5.60. By the order dated 25.4.63 Mr. Sutaria was promoted to the higher post of Agriculture Supervisor but the petitioner was not promoted. The petitioner therefore submitted a representation on 25.4.63 that he being senior to Mr. Sutaria and the critetia for promotion to the next higher post being serniority-cum-merit he should have been preferred for promotion to the post of Agriculture Supervisor and that he has been wrongly superseded. The petitioners case is that he had been promoted as Agriculture Supervisor in June 1967 and by Government letter dated 27.12.68 the government also re-fixed the petitioners seniority as Agriculture Assistant over Mr. Sutaria. Thereafter the petitioner was reverted by the order dated 18.9.67. The petitioner therefore preferred Special Civil Application No. 1229 of 1970 challenging the reversion order. This Special Civil Application No. 1229 of 1970 was decided on 22.1.74 and the reversion order was set aside. In this order dated 22.1 which is placed on record as Annexure C it is mentioned that admittedly the petitioner was senior in the cadre of Agriculture Assistant. Thus the petitioners grievance with regard to the promotion on the post of Agriculture Supervisor as such was over and the question of petitioners seniority over Mr. Sutaria has also to be taken to be settled down. The only question therefore remains is as to whether the petitioner is entitled to be promoted as Agriculture Supervisor from 25.4.63 instead of June 1967 and as to whether the petitioner is entitled for a direction to ante date the date of his promotion from June 1967 to 25.4.63.

(2.) On this aspect of the matter it may be pointed out that there were adverse remarks against the petitioner for the year 1962-63 and these adverse remarks had been duly communicated to the petitioner. It appears that the petitioner submitted a representation for expunging the remarks for the year 1962-63. Strangely enough in the affidavit-in-reply dated 18.7.83 which is filed in this case by the Joint Director-of Agriculture Rajkot Division Mr. N.R. Patel it has been stated that the Sub-Divisional Soil Conservation Officer Survey Rajkot who was petitioners immediate officer was informed vide Confidential letter dated 12.3.65 that no application against adverse remarks in the Confidential Reports is to be entertained according to Department Circular dated 28.12.54 and therefore petitioners application had been filed and the applicant be informed accordingly. It is also stated in para 6 of this affidavit-in-reply that in case of Mr. K.M. Vora in Second Appeal No. 610 of 1980 filed in High Court of Gujarat the Department had deposed that while giving promotion criteria of consideration of last three years Confidential Reports is to be followed and the case of the petitioner was considered for promotion on the marking system basis but he was not possessing merit factor of 55 marks to be eligible for promotion and later on on instructions received from the Department vide letter dated 16.6.66 petitioners case was considered for promotion and he was promoted on 1.6 as per the new formula. It is stated in para 4 of the affidavit-in-reply dated 18.7.83 filed by Joint Director Mr. N.R. Patel that petitioner was informed by Superintending Agricultural Officer Rajkot vide letter dated 2.3 that his case for promotion to the post of Agriculture Supervisor in the years 1963 1964 and 1965 was considered but the petitioner was not found to possess the merit factor i.e. 55% marks on the basis of Confidential Reports.

(3.) Thus from the pleadings of the parties of both the sides it is clear that the adverse remarks recorded in the Annaul Confidential Reports against the petitioner for the year 1962-63 were taken into consideration against him and on that basis he was not found to possess 55% marks and also that in the other relevant years there are no adverse remarks against the petitioner. The only adverse remarks are for the year 1962-63 for which the petitioner had submitted a representation and that representation was not entertained. Il is the trile law that the adverse remarks recorded against an employee even if conveyed can not be taken to have become final if the concerned employee submits a representation against the same and pending such representation the adverse remarks can not be taken into consideration and if the representation remains undisposed and the concerned employee is held to be unsuitable on the ground of such adverse remarks against which the representation is pending such consideration can not be said to be fair consideration and the same stands vitiated. In the case at hand it is the case of the respondents themselves that they did not entertain the representation submitted by the petitioner against the adverse remarks for the year 1962-63 and they have gone to the extent of telling that they have the Departmental Circulars according to which the grievance against the adverse remarks is not to be entertained. Now this is an absolutely unlawful situation created by the respondents not to consider the representation against the adverse remarks. The right to representation against the adverse have been recognized in more than one decisions and it has been clearly held in Gurdial Singh vs. State of Punjab reported in AIR 1979 Supreme Court 1622 that in accordance with the rules of natural justice an adverse report in a confidental roll can not be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report and further that such an opportunity is not an empty formality its object primarily being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned whether the adverse reeport is justified. It is therefore well settled that a decision has to be taken as to whether the adverse remarks were justified or not. If the representation is filed by the concerned employee against the adverse remarks and in case the representation is not considered and the adverse remarks are taken into consideration the same is contrary to the principles of fair play and natural justice and such consideration would certainly stand vitiated and apart from the fact that it will not be a case of fair consideration within the meaning of principle of equality of opportunity in matters relating to employment enshrined in Article 16 of the Constitution of India it will be a case of discrimination vitiating the consideration as such. The Annual Confidential Reports in case of Government servant form a very valuable basis to determine their fate in future. In fact the Annual Confidential Reports work like a mirror before the concerned authorities while considering the matters for promotion etc. so as to reflect the image and efficiency of the Government servant and therefore not only while recording the Annual Confidential Reports all the instructions have to be followed and the same are to be recorded with care and caution the representations made by the Government servants against such adverse remarks have also to be considered with an active application of mind objectively and a decision as to whether the remarks were justified or not has to be taken by the concerned appropriate authority before the same are put to use to the prejudice of the Government servant at the time of the consideration of his candidature for promotion to the next higher post. Had the petitioners representation been considered and had the authorities came to the conclusion that the remarks were not justified the petitioner may have been found to possess the requisite standard of 55% marks and in that case he could have been promoted also.