D D SHARMA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner who was working as a Sub Divisional Officer in the Public Works Department (B&R) Branch has filed these two petitions with a two-fold grievance. Firstly, he was conveyed 'average' reports for the years 1984-85, 1985-86 and 1988-89 to 1990-91. He represented against these reports. The representations having been rejected, the petitioner has filed Civil Writ Petition No. 18550 of 1991 to challenge the reports as well as the orders passed by the appropriate authority. Secondly, the petitioner complains that on the basis of these untenable reports, he was wrongly retired from service vide order dated March 5, 1992 on attaining the age of 50 years. The petitioner submits that since he was wrongly graded as 'average', even the order of premature retirement cannot be sustained.

(2.) The solitary contention raised by Mr. Surya Kant, learned counsel for the petitioner is that the remarks recorded by the Executive Engineer suffered from the vice of malafides. There was a dispute of inter se seniority between the petitioner and the Executive Engineer, Mr. I.K. Madan. It was on account of this dispute in which the petitioner had finally succeeded that Mr. Madan had recorded the petitioner's performance as 'average'. Secondly, the counsel submits that the assessment of the petitioner's performance was wholly arbitrary and unfair. There was no material on the basis of which his performance could have been assessed as average. Accordingly, the learned counsel submits that the reports in which the petitioner's overall assessment was described as 'average' deserve to be considered as good. On this basis, the learned counsel submits that even the order of premature retirement has to be quashed. The claim made on behalf of the petitioner has been controverted by the learned counsel for the respondents.

(3.) Admittedly, Mr. I.K. Madan against whom allegations of malafides have been made has not been impleaded as party. It is also not disputed that the remarks recorded by an Executive Engineer have to be reviewed by the Superintending Engineer and accepted or modified by the Engineer-in-Chief. In the present case, the remarks had been finally recorded by the Engineer- in-Chief. It was the report as finally approved by the accepting authority that had been communicated by the accepting authority that had been communicated to the petitioner. In this situation, the allegation of bias or malafides as levelled by the petitioner does not appear to be well-founded. It also deserves mention that it is not a case where in a stray or a single report, the petitioner's performance was assessed as 'average'. In fact, it appears that the petitioner's record has been basically colourless. At least on five occasions, the petitioner's performance was adjudged as average. According to the written statement filed on behalf of the respondents, the petitioner had been conveyed certain remarks even prior to 194-85. He had not been allowed to cross the Efficiency Bar which had fallen due in the year 1981. In fact it was only with effect from April 1, 1984 that the petitioner was permitted to cross the Efficiency Bar. If different officers have repeatedly assessed the petitioner's performance as average, it cannot be said even prima-facie that the action is arbitrary or malafide.