H B DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Counsel for the parties. The petitioner, a sub-regional employment officer in the Employment Exchange Department filed this writ petition before this Court challenging thereunder the action of the respondents to deny him promotion to the post of Assistant Director of Employment.

(2.) Promotion has been denied to the petitioner only on the ground that there were adverse remarks in his Confidential and Character Role Report of the year 1981-82. The petitioner was communicated these adverse remarks in his Confidential and Character Role Report of the year 1981-821 under the memo dated 16-3-83. The petitioner filed a representation against those remarks and that representation has also been rejected by the respondent under the order Annexurc 'C' dated 20-7-83. The petitioner has challenged in this Special Civil Application, the Annexure 'A', communication of adverse remarks and Annexure 'C', rejection of representation filed by him against those remarks. No other adversity has been pointed out in the reply in the service record of the petitioner. The petitioner has challenged the adverse remarks & given to him in his confidential and Character Role Report of the year 1981-82 on the grounds that (i) the reporting Officer Shri G. C. Bhutwala was a biased person; (ii) the petitioner filed a petition earlier before this Court being Special Civil Application No. 1878 of 1979 in connection with his seniority in the cadre of Employment Officer and Shri G. C. Bhutwala was one of the respondents therein; (iii) the petitioner has claimed seniority above that person; (iv) as this person was biased against the petitioner, he would have reported adversely about his work, which is not impartial assessment; (v) Shri Bhutwala was given additional charge of the post of Assistant Director of Employment in his own pay scale. By virtue of that additional charge, he operated the post of Assistant Director of Employment and he became Reporting Officer of the petitioner but in sum and substance, he was the officer of same rank. Shri Bhutwala was working on the post of Assistant Director of Employment in addition to his own duties which was lower and as such, it was hot a case where Shri Bhutwala was posted as Assistant Director of Employment after promotion; (vi) the adverse remarks have been communicated to the petitioner after about one year of end of financial year 1981-82. This delay in communication is fatal to the remarks. The petititoner made further grievance that the Government Circular dated 23rd August 1974 has not been followed before reporting adversely of his work by the Reporting Officer. The petitioner was never given any guidance or assistance before reporting his work adversely by the Reporting Oficer. Otherwise also, the adverse remarks which have been given to the petitioner cannot be said to be adverse when the overall assessment of work of the petitioner has been stated to be 'fair'. These two remarks cannot be allowed to make his work to be adverse to the extent to deny him promotion on the next higher post.

(3.) Shri Bhtwala was impleadcd a party in person as there were allegations of mala fide against him, but he has not chosen to file any reply to this Special Civil Application. In the reply to writ petition, it is not the case of the respondents that Shri Bhtwala was promoted to the post of Assistant Director, Employment. The respondents have come up with the case that the petitioner was junior to Shri Bhutwala who was appointed as Assistant Director invoking Rule 53 of G.F.R.S. The respondents have not denied that Shri Bhutwala was working in his own pay scale on the post, but discharging additional duties of Assistant Director, Employment.