JAIPUR VIDYUT VITRAN NIGAM Vs. SHER SINGH MEENA

JUDGEMENT

(1.) This appeal is directed against the judgement of the learned Single Judge dtd. 10/4/2019, who has allowed the writ petition filed by the respondent and quashed the adverse entries of the respondent-writ petitioner made in his Annual Performance Appraisal Report (for short-’APAR') of the year 2005-06. The learned Single Judge in allowing the writ petition has relied on the judgement of the Supreme Court in Union of India and Ors. v. E.G. Nambudiri (1991) 3 SCC 38 and has noted that respondent-writ petitioner made representation against the adverse remarks in his APAR of the year 2004-05 when he was rated average. The appellant rejected the representation, but failed to justify as to how, when despite letters dtd. 8/10/2004, 1/7/2004 and 29/10/2004, the respondent's APAR of the year 2004-05 was already rated average, he could again on the same material be visited with adverse entry in the APAR of 2005-06.

(2.) Record reveals that the respondent prior to filing the writ petition in which the impugned order has been passed, also filed S.B. Civil Writ Petition No. 13776/2009 on being overlooked for promotion to the post of Assistant Engineer on the recommendation of the DPC with reference to the vacancy of the year 2010-11 when it was disclosed that it happened because of the adverse remarks in his APARs of the year 2004-05 and 2005-06. The stand of the respondent before this Court was that those adverse remarks were never communicated to him. The writ petition was therefore disposed of by order dtd. 28/4/2017 with direction to communicate the respondent-writ petitioner, the entries of the year 2004-05 and also 2005-06 within two months from the date copy of that order was produced before him. The respondent-writ petitioner was required to make a representation thereagainst and the appellant was then in turn required to decide such representation within two months and if the entries are upgraded, the appellants were further directed to consider his case for promotion retrospectively by the DPC with reference to the year 2009-10 with all consequential benefits. The representation pursuant to the aforesaid judgement made by the respondent was rejected by the appellant-JVVNL by detailed order dtd. 20/9/2017 in the following terms:

(3.) Shri Shailesh Prakash Sharma, learned counsel for the appellant-JVVNL has submitted that the learned Single Judge was not justified in relying on the letter dtd. 22/1/2007 written by Shri S.K. Sharma, the Reviewing Officer that he wrote the letters dtd. 8/10/2004, 1/7/2004 and 29/10/2004 to the respondent advising him to improve his work, but despite such communications, he failed to improve, therefore, the adverse remarks were mentioned. Learned counsel submitted that these letters form part of the overall service record and, therefore, contention that they would be reflected only in the APAR of the year 2004-05 and not in the APAR of 2005-06 cannot be justified as the assessment year of the APAR of 2005-06 starts from 1/4/2005. It is therefore prayed that the impugned order be quashed and set aside.