M L GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) IN this writ petition, petitioner challenges the selection of respondents 3 to 18 to the KAS supertime scale ordered vide Government order No. 2059 GD of 1983 dated 19 -12 -1983. He prays for the quashing of order of Secretary to Government General Department dated 24 -5 -1982 whereby adverse entries in the ACRâ„¢S of the petitioner for the year 1978 -79 are directed to remain in fact. Further a writ of mandamus is prayed to grant clearance of efficiency bar with effect from 1 -11 -1978 to the petitioner and to consider the case of the petitioner for selection grade. It is useful to give a brief resume of the facts in order to understand the controversy raised in the petition.

(2.) PETITIONER is an employee of the state and is borne on the J & K Administrative service of the establishment of the State. His service conditions are governed by the J & K Administrative Service Rules, 1979, promulgated by SRO 569 of 1979. Some instructions are said to have been issued earlier by respondent No. 2 in 1973 which contained the procedure of writing -up, custody and maintenance of Confidential reports of Government Officers. Another SRO under No. 570 dated 19 -12 -1983 was issued where by the respondents 3 to 18 have been given the selection grade (1850 -75 -2300). Petitioner submits that these respondents are junior to him. Procedure which was to be followed for promotion to the selection grade was flouted and seniority was ignored from consideration. Petitioner claims to have had an unblemished service record. He came to know for the first time on 6 -2 -1979 that his confidential reports pertaining to the year 1975 -76, and 1977 -78 contain some adverse remarks. Thereafter petitioner was conveyed adverse remarks for the year 1978 -79 also. Petitioner is said to have made a representation against the adverse entries, but the same was rejected. On 24 -5 -1982 and 29 -9 -1979. Petitioner is said to have demanded particulars of facts upon which adverse remarks were made, but the same were not supplied to him. Petitioners efficiency bar which was due on 1 -11 -1978 was cleared with effect from 1 -11 -1979 vide Govt. order No. 1549 -GD of 1982 dated 30 -6 -1982. A note was appended to this order to the effect that the delay in issuing the sanction of crossing of efficiency bar was procedural. Once the efficiency bar was permitted to be crossed, it should have been from 1 -11 -1978 and prior to 1 -11 -1979 no adverse remarks could remain on board. With effect from 1 -11 -1979 however, the adverse entries recorded in his previous ACRs could not be looked into and they are deemed to be wiped out. The previous ACRs for the year 1975 -76, 1976 -77, 1977 -78 and 1978 -79 in this view of the matter are rendered no -existent and they should not have been taken into consideration against the petitioner while making the selection impugned in the writ -petition.

(3.) PETITIONER claims that he is senior to respondents 3 to 18. He was eligible for being considered for selection grade of KAS. The J & K Administrative Service Rules provide that the said service shall have time scale posts, 20% of total posts as selection grade posts and the service shall be constituted by selection among the persons with not less than seven years service. Criteria for selection was seniority -cum -merit. But by virture of SRO 570 of 1983 the rules were substituted and time scale posts, selection grade, super time scale posts were created, secondly the service was constituted by selection among the persons with whatever little experience of service. The criteria for selection was merit and suitability. Seniority was completely ignored which would give power to the selectors to make selection on the basis of favouritism and nepotism. The adverse entries of the petitioner were not in accordance with the provisions of Government instructions of 1973 and infact they were contrary to the said instructions. The ACRs pertaining to the years 1975 -76, 1977 -78 were communicated to the petitioner together on 6 -2 -1979 and for the year 1978 -79 were communicated to the petitioner on May 12, 1980. Substance of the facts on which these ACRs were based were not given or portrayed in the communication. The instructions have not been followed, therefore adverse ACRs are rendered bad and illegal. The ACRs are said to be based on no material, but are made due to non -application of mind and are actuated by extraneous considerations. Therefore they cannot be read against the petitioner. Orders of rejection of petitionerâ„¢s representation are also said to be bad and against the rules. Petitioner contends that his merit was not objectively assessed. There was arbitrariness on the part of the authorities. Petitioner insists that his date of clearance of efficiency bar is 1 -11 -1978 and not 1 -11 -1979 and anything conveyed about the previous ACRs after crossing of efficiency bar is not to stand in his way to seek consideration for promotion.