H" ¢ HIGH COURT OF CHHATTISGARH : BILASPUR Mtg SINGLE BENCH z HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition ls] No.3767/2005 PETITIONER Shiv Kumar Savarkar Versus RESPONDENTS State of Madhya Pradesh (now CG.) and others Appearance: Shri S.K. Thomos, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State /respondents ORAL-ORDER (Passed on 13.4.20 10) 1. This petition has been filed by the petitioner aggrieved by communication dated 24.1 1.1998 (Annexure A-l) by which an adverse remark recorded in the ACR of the petitioner in respect of the period ending March, 1998, have been communicated to him. . Against the said remark, petitioner had preferred a representation which has also been rejected vide order dated 3rd July, 2000 (AnneXure A-3). Assailing the legality and validity of the action of recording adverse remarks and rejection of the representation, it is submitted by learned counsel for the petitioner that the remarks have been communicated belatedly resulting in violation of Government instructions contained in Circular dated 29.11.1984 (Annexure A-S), dated 20.1 1.1990 (Annexure A—6) and dated 9th March, 1992 (Annexure A—7). The second submission made by learned counsel for the petitioner is that though against the adverse remarks, petitioner preferred representation, wherein he demonstrated that remakes have been recorded Without any material basis and contrary to performance of work by the petitioner, however, in reply to that representation, petitioner has been communicated that his representation has been rejected. 3. Submission of learned counsel for the petitioner is that the order rejecting representation does not show application of mind, as it is not supported by any reason whatsoever. A representation having been made, respondents were duty bound to record reasons for rejection. 4. In so far as remark relating to conduct is‘Concerned, it is submitted that such remark has been recorded without any enquiry and without any statement of the petitioner. In so far as remark relating to consumption of liquor is concerned, is also not correct and the same has been made a basis Without obtaining any clarification from him. In so far as remark with regard to punctuality is concerned, it has been 3‘ i submitted that no warning was ever issued. With regard to remarks relating to typing work, it has been submitted that petitioner was never assigned the work of typing and no warning was ever issued. In so far as remark regarding suitability for promotion is concerned, it is argued that’ such remark in the Annual Confidential Report is unwarranted and without authority, as this assessment has to be made only by a duly constituted Departmental Promotion COmmittee as and when action for consideration arises and it could not be pre-empted in the manner it has been recorded by the Accepting Authority. In so far as remark that petitioner does not take proper interest in his work, it has been stated that no prior notice was given. 5. Per contra, submission of learned counsel for the respondents is that the remarks have been communicated to the petitioner by assessing his work during the relevant period by the authority under Whose direct subordination petitioner had been discharging his duties. Petitioner has not come out with any specific case and by and large a only defence of the petitioner has been that before recording such remarks, no prior notice/warning was issued to him. Learned counsel for the respondents further submits that in so far as alleged violation of various guidelines with regard to the period within which communications are to be made, petitioner has not come out with any specific details with regard to the date on which the remarks were received by the Accepting Authority from the Reviewing Authority. It is also submitted that the Government, later on, in the year 1983 clearly stated that mere delay would not render the remarks non—existent. Learned counsel for the respondents further submits that petitioner’s representation was duly considered by the competent authority and after due application of mind, the same was rejected. 6. I have considered the rival submissions made by learned counsel for the parties and perused the records. § 7. In so far as allegation relating to delay in communication of remarks is concerned, impugned remarks have been communicated to the- s petitioner vide memo.dated 24. 1 1. 1998 (Annexure A—l). Circular dated 9th March, 1992 (Annexure A-7) requires the Accepting Authority to write the remarks by 15m May. However, Circular dated 29.11.1984 (Annexure A—5) requires communicatiOn within 3 months from the date of receipt by Accepting Authority. Petitioner has not made any specific averments in the petition nor it is borne out from any other records as to the date on which remarks were received by the Accepting Authority. Moreover, Circular dated 29.11.1984 (Annexure A-5) and 9th March, 1992 provide that mere delay would not render the remark non- existent. Therefore the submission of learned counsel for the petitioner that the remarks are liable to be set aside, only on this ground, cannot be accepted. 8. From perusal of the impugned communication dated 24.11.1998 (Annexure A—l), representation of the petitioner (Annexure A—2) and rejection of representation vide memo dated 3rd July,2000 (Annexure A— 3), it is found that though the petitioner in respect of some of the remarks came out with specific case, it is neither discernible from the communication dated 3.7.2000 (Annexure A—3) nor from any‘ material placed before this Court by the respondents that due application of mind had taken place before rejecting petitioner’s representation. In so far as remarks with regard to petitioner conduct is concerned, it is c clear that petitioner was earlier issued a notice regarding consumption of liquor. The only objection which has been taken by the petitioner in his representation that his explanation was never offered, therefore, is factual incorrect. In so far as the aspect of punctuality is concerned, all that has been stated by the petitioner in his representation is that he was not given any warning. Petitioner has not raised any specific plea with regard to performance of work and punctuality maintained by him during the, course of discharge of his duties. However, in so far as remarks with regard to typing work, suitability for promotion are concerned, in the opinion of this Court those remarks are not supported by any material nor there is any reason assigned for rejecting letter dated 3.7.2000 nor in the return of the respondents. Petitioner in his representation clearly stated that the typing work was never assigned to him but he was assigned other work. On this aspect there is no consideration. In so far as finding with regard to suitability for promotion is concerned, such remark was un-called for. Whether a Government servant is suitable for promotion or not this will arise for consideration when he becomes due for promotion. Moreover, suitability for promotion is a work to be considered by a Departmental Promotion Committee under a collective decision making process. It would not be within the domain or jurisdiction of the Accepting Authority sitting alone to decide the suitability/unsuitability of a subordinate in the matter of promotion. 9. In these circumstances, the adverse remarks with regard to failure to perform typing work and suitability for promotion are hereby set aside. Respondent authorities shall reconsider these aspects upon due consideration on representation of the petitioner and appropriate order would be passed, in accordance with law. The petition is accordingly allowed in part. Sdl' oh n ShriVast VMan‘n‘dra M ( wudg? , / 3V3 Praveen r“,o