VIRENDRA KUMAR BHATIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this petition for writ, the petitioner is seeking a direction to expunge the adverse remark recorded in Annual Confidential Appraisal Report pertaining to the year 2006-07 and further to promote him as Vice Principal against the vacancies of the year 2008-09. The factual matrix necessary to be noticed is that the petitioner is holding the post of Lecturer created under the Rajasthan Educational Service (Collegiate Branch) Rules, 1986 (for short 'the Rules of 1986' hereinafter). Under the Rules of 1986, a Lecturer is having an avenue for promotion to the post of Principal/Vice-Principal. The criteria for promotion to the post aforesaid is merit and seniority-cum-merit with the ratio of 1:1. The respondents under the order dated 9.10.2009 made promotion of 50 Lecturers as Vice-Principal as per the criteria of seniority-cum-merit against the vacancies of the year 2008-09.

(2.) The grievance of the petitioner is that under the order aforesaid promotions were accorded to several persons junior to him. It is pointed out that all the persons named subsequent to Sr. No. 35 are junior to him in the cadre of Lecturer. As per the petitioner promotion was denied to him on the count of an adverse remark made in his Annual Confidential Appraisal Report pertaining to the year 2006-07. It is asserted that the adverse remark pertaining aforesaid could have not been taken into consideration in view of sub-clause (4) of Clause 15 of the Rajasthan Civil Services (Performance Appraisal Report) Instructions, 2008 (for short 'the Instructions of 2008' hereinafter), which provides that where an employee has tendered evidence against the reporting/reviewing authority, before the court of law, the reporting/reviewing authority cannot write/review the Annual Confidential Appraisal Report of the employee. The petitioner tendered evidence against the reporting officer Dr. M.R. Choudhary (respondent No. 3), as such, the remark made by him in the Annual Confidential Appraisal Report for the year 2006-07 is nonest and that could have not been taken into consideration while considering the case of the petitioner for promotion.

(3.) As per reply to the writ petition filed on behalf of the respondent Nos. 1 and 2 the promotion was denied to the petitioner on the count of adverse remarks in his Annual Confidential Appraisal Report pertaining to the year 2006-07 and that remark was made by Dr. M.R. Choudhary (respondent No. 3). The respondents admitted that in view of Clause 15(4) of the Instructions of 2008 Dr. M.R. Choudhary could have not made any remarks regarding performance of the petitioner. The stand taken by the respondent Nos. 1 and 2 in para No. 18 of the reply reads as under:--