N R KALARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The challenge in this petition under Article 226 of the Constitution of India is to the adverse entries recorded in the Annual Confidential Reports (ACRs) of the petitioner for the period from 01.04.2006 to 23.03.2007 and 01.04.2007 to 12.12.2007. It is further prayed that the respondent authorities be directed not to withhold the promotion of the petitioner to the post of Executive Engineer on the ground of the adverse entries for the said period.

(2.) Briefly stated, the relevant facts of the case are that the petitioner joined service under the State Government as Assistant Engineer (Mechanical) on 28.02.1980. In due course, the petitioner was promoted on the post of Deputy Executive Engineer (Mechanical) in February, 2004. Since then the petitioner is serving on the said post. The next promotional post is that of Executive Engineer. The date of birth of the petitioner being 05.10.1955, he would superannuate in October, 2013. The promotion to the post of Executive Engineer would be the last promotion for the petitioner before his retirement. Somewhere in the last week of March, 2011, the Departmental Promotion Committee (DPC) was convened to consider the case of suitable persons for promotion to the post of Executive Engineer. The name of the petitioner was considered. However, to his shock and surprise on 31.03.2011, the petitioner received a communication dated 25.03.2007 from the Office of the Executive Engineer, Rajkot, enclosing therewith the letters of the State Government dated 12.07.2010 and 22.02.2011, conveying that there are adverse entries in the Annual Confidential Reports of the petitioner for the period from 01.04.2006 to 23.03.2007 and from 01.04.2007 to 12.12.2007. It is stated therein that as the petitioner had not responded to the said adverse entries, an extension was granted to him by the letter dated 22.02.2011, a copy of which was also enclosed with the forwarding letter dated 25.03.2011.

(3.) Mr.Vaibhav A. Vyas, learned advocate for the petitioner has submitted that, as per the Circular of the State Government dated 01.05.2004, an adverse entry has to be communicated to the concerned employee within a period of six weeks from the date of assessment by the Reviewing Officer. Thereafter, a period of six weeks is required to be given to the employee to make a representation. The respondent authority would thereafter decide the representation, within a period of three months. In the present case, no such procedure has been followed. As admitted by respondent No.4 in the affidavitinreply, the communication of the adverse remarks was made by a letter dated 13.08.2010, which was sent by post. However, the said letter has been lost in transit. The second communication, by the letter dated 25.03.2011, has been received on 31.03.2011, after the adverse remarks had already been confirmed. It is submitted that this procedure is dehors the instructions of the State Government, as contained in the Circular dated 01.05.2004, as well as the principles of law laid down by this Court in Special Civil Application No.252 of 2009, vide judgment dated 20.01.2016, in the case of B.M. Rajvanshi Vs. State of Gujarat & Ors.