SCA/16197/2007 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16197 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= C S CHAUDHARY - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================= Appearance : MR NK MAJMUDAR for Petitioner(s) : 1, Ms. SANGEETA VISHEN, ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2, 4, NOTICE SERVED BY DS for Respondent(s) : 1 - 4. ========================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 12/09/2008 ORAL JUDGMENT SCA/16197/2007 2/15 JUDGMENT The present petition has been filed by the petitioner for the prayer to quash and set aside the impugned communication/order dated 11.12.2006 (Annexure I) as it is violative of Art. 14 of the Constitution of India. It has been also prayed that the representation of the petitioner has not been considered as per the order passed by this Court in Special Civil Application No. 19450/06 dated 20.9.2006. It is also prayed to direct the respondent authorities to stay the operation and implementation of the impugned communication/order dated 23.3.2001 as well as order dated 11.12.2006 (Annexure I) and also further direct to consider and decide the representation after considering the opinion of the reviewing authority dated 6.12.2006 (Annexure J) as per the order of this Court in Special Civil Application No. 19450/06 dated 20.9.2006. 2. The facts of the case, briefly stated, are that by communication dated 23.3.2001 (Annexure A), adverse remarks were communicated to the petitioner and by another communication on same day, i.e., 23.3.2001 (Annexure B) again it has been communicated to the petitioner that the remarks in Part- IV, Column No. 4 is “FAIR”. The remarks in Part-IV, Column No. 4 provide, SCA/16197/2007 3/15 JUDGMENT Overall assessment including mention of outstanding work, “FAIR” if any. 3. Therefore, it has been contended that as the said remarks, which was adverse, communicated earlier were in fact treated as 'fair' and was not to be treated as adverse remark he was not required to make any representation and it was not to be treated as adverse and it was only communicated with a view to improve the performance of the petitioner. Therefore, it has been emphasized that for the purpose of considering the case of the petitioner for further promotion, despite the communication dated 23.3.2001 which clearly indicates that the earlier communication on the same day should not be treated as averse remark and overall performance and assessment in the C.R. of the petitioner is “fair”. 4. Therefore, the remarks are not adverse and the petitioner has been wrongly superseded in the matter of promotion and about 36 Jr. Officers have been promoted and therefore the petitioner ultimately filed the petition being SCA No. 19450/06 and the order was passed by this court directing the respondent authorities to consider the case of the petitioner. The petitioner, therefore, made a representation pursuant to the order passed by this court in the aforesaid Special Civil Application which was considered by the respondent authorities and the impugned communication/order at Annexure I dated 11.12.2006 was passed and that after SCA/16197/2007 4/15 JUDGMENT considering the A.C.R., in light of the order passed in SCA No. 19450/06 dt. 20.9.2006, it was decided to maintain the remark as it is without any modification. It is this communication which has been challenged in the present petition by the petitioner contending that the representation or the case of the petitioner has not been considered properly in light of the order passed by this court in SCA No. 19450/06 and he has also made a further representation at Annexure K(colly.) dated 1.5.2007. 5. An affidavit-in-reply has been filed on behalf of the State by the Jt. Secretary, GAD, Sachivalaya, Gandhinagar and it has been pointedly referred to the remarks in various columns . It has been clarified and explained as to how the 2 communications came to be addressed on the say i.e. on 23.3.2001, meaning thereby it was made clear that a part of the remarks in a particular column was not to be treated as adverse and it was graded as 'fair', whereas a part of the remarks in another column were adverse and, therefore, two types of communications were addressed to the petitioner which has been emphasized by the government. Both the communications dated 23.3.2001 referring to the particular remarks qua the remarks in Part-IV Col. 4 grading as 'fair' and also the other remark in Col. 2 Part-III and different items which have been treated as adverse and have been communicated specifically as adverse remarks are also produced as Annexure I and II, respectively. It has also been contended in the affidavit-in-reply SCA/16197/2007 5/15 JUDGMENT they the entries made by the reviewing officer in the remaining columns of the ACR clearly had adverse content in it and therefore they were correctly communicated to the petitioner as 'adverse remarks'. The petitioner was also given an opportunity to make a representation against the adverse remarks communicated to him and there is no confusion with regard to the communication of the adverse remarks, which the petitioner has sought to create or project as a confusion by the respondents in communication of the adverse remarks. 6. It has been specifically contended that there were two communications which could not have been interlinked to create a confusion. The point at issue is of 'adverse remarks' and not of 'advisory remarks”, which the petitioner is well aware. Therefore, referring to the past record of the petitioner and also the previous petition filed by the petitioner being SCA No. 19450/06 and the order passed by this court, it has been specifically contended that pursuant to the order passed by this court, a committee was constituted and all aspects were kept in mind while the decision making process was undertaken. 7. The aspects which were kept in mind while the decision making process has been undertaken have been narrated in para 12 and the decision was taken by the then Principal Secretary (R&R), NWR, WS & KD who was working subsequently as Principal SCA/16197/2007 6/15 JUDGMENT Secretary to the Government (Appeals), Revenue Department, Ahmedabad and therefore his views sere also obtained and after considering the record and the ACRs of the petitioner, the decision was taken to finally retain the adverse remarks. It has been specifically clarified as to why the concerned department as well as the Addl. Chief Secretary, GAD, was joined as respondent No. 3 in the petition, but he was not concerned at the relevant time and thereafter as the subject of ACRs have been transferred to GAD from June 2004, he was also required to coordinate the decision making process. The respondent No. 1 was the officer who had given adverse remarks and, therefore, his views were also obtained while taking the decision on the representation of the petitioner. Thus, after considering the views, the decision was taken by the committee and therefore the averments are misconceived. 8. It has been further clarified that the Screening Committee had considered the case of the petitioner on 3 different occasions i.e. on 17.5.2003, 20.9.2004 and 16.5.2006 and on all the three occasions the petitioner was assessed as 'UNFIT' for elevation and deployment to the Additional Collector level posts. It has also been denied that the entire service record is unblemished as the petitioner was also communicated advisory remarks for the period from 1.4.94 to 5.10.94 vide Revenue Departments' letter dated 8.8.2001. He was also communicated advisory remarks for the period from 6.10.94 to 31.3.195 vide Revenue Department's letter SCA/16197/2007 7/15 JUDGMENT dated 18.8.2001. Moreover, there are also adverse remarks in the ACR for the period 10.5.99 to 31.3.2000 which were communicated by the Revenue Department vide its letter dated 23.3.2001. Therefore, it has been reiterated that in the ACR for the period 10.5.99 to 31.3.2001 of the petitioner, the Reporting authority had not given any adverse or advisory remarks, it was the Reviewing Authority which did not agree with the assessment made by the Reporting Officer and accordingly it has also been communicated where it is adverse to the petitioner. It has also been reiterated that the Reviewing Authority has elaborated by post-scripting a NOTE below the Review Part to indicate his own assessment of the officer in regard to the columns Nos. 1, 4 and 10 of the Reporting Part. Further, how the assessment of the petitioner has been made has been also discussed and it has been specifically contended, referring to the G.R. of the GAD dated 31.3.89 where it has been mentioned that the term “Fair”, “Average”, “Ordinary”, “Tolerable” etc. should not be used in overall assessment column of the ACR and if they are used, the same should not be treated as adverse and such remarks should be communicated to the officers to enable them to improve their performance. Therefore, it has been contended that the overall assessment of 'FAIR' given in Column No. 4 of the Review Part of the ACR the petitioner was specifically communicated that it is not to be treated as “adverse”, but in view of the general instructions stated above, it has to be treated as “advisory” and it has been communicated to improve the SCA/16197/2007 8/15 JUDGMENT performance vide communication dated 23.3.2001. However, it has been again clarified that the other remarks in other columns were averse, which have been communicated to the petitioner. It has been reflected in the affidavit-in-reply in detail again in para 26. 9. Learned advocate Mr. Majmudar for the petitioner, referring to the pleadings in detail, tried to submit that there was a confusion with regard to the two remarks and by the different communications of the same dated i.e.. 23.3.2001 the remarks which were adverse were modified as 'fair' which was not to be treated as adverse and yet the same has been treated as adverse remarks for the purpose of considering the case of the petitioner for promotion and therefore he had also filed a petition being SCA No. 19450/06. Thereafter, in spite of the order at Annexure F and direction by this court, the respondents have not considered the case of the petitioner for promotion and therefore the present petition has been filed, which he again emphasized, referring to the record and the entries in the ACRs of the petitioner, and tried to emphasize that there was a confusion amongst the authorities and he repeatedly harped on the said communication dated 23.3.2001 to emphasize that there was some confusion and in fact to support his contention he has also referred to a letter/communication at Annexure J that even after the order was passed by this court in the earlier petition, when the papers were referred to the concerned authority, he has also stated that it should be treated as 'advisory' SCA/16197/2007 9/15 JUDGMENT and not as 'adverse' remarks and yet the same remarks are treated as 'adverse' as stated in the impugned order/communication dated 11.12.2006 and, therefore, he has filed the present petition. 10. The learned advocate has strenuously submitted that the said decision may be quashed and set aside and further directions may be given to consider the case of the petitioner qua promotion as he has been superseded. 11. Learned AGP Ms. Sangeeta Vishen for the respondents submitted that confusion is sought to be created by the petitioner deliberately by referring to the 2 communications dated 23.3.2001. However, she explained and referred to the affidavit-in-reply and pointedly emphasized that what was communicated as advisory remark was not treated as adverse remark, whereas the other adverse remarks in another column were specifically communicated as adverse remarks and, therefore, there is no question of any confusion or mistake done by the respondents. The learned AGP also referred to the impugned order/communication dated 11.12.2006 (Annexure I) and submitted that as reflected therein, a committee was constituted and after considering the direction of this court in SCA No. 19450/06 the committee considered the record and ACRs of the petitioner and the decision was taken to maintain the remarks as it is without any modification. SCA/16197/2007 10/15 JUDGMENT 12. Learned AGP Ms. Sangeeta Vishen also referred to the fact that in earlier petition the description in the title cause of the respondents and the description which he has given in the petition on the basis of which the writ was issued also do not tally and for that purpose she referred to Annexure G at p. 48 and Annexure F, p.44. However, she clarified that as per the direction of this court, a committee was constituted and the committee, after again calling for the remarks from the same authority or the officer who had made the adverse entries as reviewing officer, and on the basis of the report/comments the impugned decision has been taken by the committee. She also submitted that it is evident from the pleadings as well as the affidavit-in-reply reflecting upon the grading and the ACRs of the petitioner which have been considered again that the petitioner cannot have a grievance when his own ACRs, after having been considered and reviewed again, the decision has been taken for the purpose of promotion and when the remarks are adverse, as stated in detail, the petitioner cannot claim that his case for promotion was not considered and cannot make any grievance that his juniors have superseded. 13. Learned advocate Mr. Majmudar, again, in his rejoinder, reiterated the same averments and referring to the affidavit-in- rejoinder of the petitioner and also the entries and the impugned communication/order dated 11.12.2006 (Annexure I) at p. 56 strenuously submitted that the committee has not considered the SCA/16197/2007 11/15 JUDGMENT case of the petitioner in proper spirit in light of the observations and directions of this court in SCA No. 19450/06 and, therefore, the decision may be set aside and the case of the petitioner may be directed to be considered afresh for the purpose of promotion. 13. In view of these rival submissions, it is required to be considered whether the case of the petitioner requires any interference by this court in exercise of its jurisdiction under Art. 226 of the Constitution of India more particularly when, on earlier occasion, this court, while passing an order in SCA No. 19450/06 dated 20.09.2006, directed the authorities to consider the case of the petitioner which has been again considered by all the officers concerned and thereafter the decision has been taken to maintain the adverse remarks as per the impugned order/communication dated 11.2.2006 at Annexure I. 14. The short point which is required to be emphasized is that whether there is any kind of confusion or mistake inadvertently made by the respondents in considering the remarks as adverse remarks which were not to be treated as adverse. A close look at the record clearly makes it evident that the part of the remarks has been adverse as stated in column No. 2 Part-IV as well as Part-III Item No. 1, Item No. 4 etc. and the part of the remarks as sated and focused by the learned advocate for the petitioner particularly referring to Part-IV Column No. 4 where it was graded as “fair” has SCA/16197/2007 12/15 JUDGMENT been also conveyed as per the policy of the Government vide G.R. dated 31.3.1989. It has been explained in detail in the affidavit-in- reply. 15. Thus, it is evident that the communication of remarks in Column No. 4 part-IV which has been graded as “fair” by communication dated 23.3.2001 has been conveyed in light of this G.R. of the Government dated 31.3.1989 wherein it has been mentioned that such remarks as 'fair', 'average', 'ordinary', 'tolerable', etc. normally should not be used. However, if they are used, they should not be treated as adverse. It should be communicated to the persons like the petitioner to improve the performance and therefore in light of the G.R. it is only conveyed with a view to bring it to his notice whereas the other remarks which has also been referred to in detail in the affidavit-in-reply and which are definitely adverse, have been communicated to him and in fact even as per his own self-appraisal, which he has referred to and which has also been highlighted by the respondents in their affidavit-in-reply, and particularly referring to Annexure-II at p. 83, that such a remark is adverse remark which has been communicated. It is required to be mentioned that it has been specifically mentioned opposite Part-III Item No. 4, “Approach to work is such that it creates more problems than solving any.” Further, the remarks below Item No. 10 referring to Overall Assessment, it is graded and observed, “in view of Item No. 4 above SCA/16197/2007 13/15 JUDGMENT and somewhat cantankerous nature, his contribution in office administration negligible.” If this is the remark, coupled with the other adverse remarks as well as advisory remarks which have been communicated to the petitioner in the past, can it be said that the petitioner has been wrongly superseded for promotion? 16. Further, the court is also required to consider the scope of interference by this court in such cases particularly in a case like the present one with specific adverse remarks in the ACR. Moreover, it is also required to be considered that because there are 2 communications dated 23.3.2001, the learned advocate for the petitioner has repeatedly, harping on the same, tried to emphasize that there was an inadvertent mistake or confusion by the respondents. In fact, there is none and it has been specifically clarified elaborately while dealing with this aspect in the affidavit- in-reply. Again, a committee of the Secretaries have considered calling for the remarks or comments from the same authority or persons/officers who had made such remarks and thereafter the committee has taken the decision to maintain the same remarks which has been reflected and discussed in the affidavit-in-reply about the decision making process, the same cannot be said to be arbitrary or illegal. It also cannot be said that the respondents have not considered the case of the petitioner in proper spirit and as per the direction of this court vide order dated 20.9.2006 in SCA No. 19450/06. SCA/16197/2007 14/15 JUDGMENT 17. Therefore, in light of these clear remarks and the observations and the impugned decision clarifying as to how the decision making process was undertaken pursuant to the order passed by this Court in SCA No. 19450/06 dated 20.9.2006 when it has been decided to maintain the same remarks, there is no scope for further interference by this court in exercise of powers under Art. 226 of the Constitution of India. 18. In this connection, a useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in the case of Secretary, State of Karnataka & Ors. v. Umadevi & ors., (2006) 4 SCC 1. The observations made by the Hon'ble Apex Court in the case of L&T Komatsu Ltd. v. N. Udayakumar, reported in (2008) 1 SCC 224, referring to earlier judgment of the Apex Court in case of Kerala Solvent Extractions Ltd. v. A. Unnikrishnan reported in (1994) 1 Scale 631 are relevant in the context. It reads, “In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the SCA/16197/2007 15/15 JUDGMENT legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.” 19. Therefore, in light of these clear observations expressing a word of caution about the scope of interference by this court in such matters, particularly when on earlier occasion this court has observed and directed the respondents to consider the case of the petitioner, which has been considered by a committee of Secretaries, and the impugned decision has been taken, the same cannot be said to be arbitrary or violative of Art. 14 of the Constitution and it does not call for any interference. 20. The present petition, therefore, deserves to be dismissed and is dismissed accordingly. No order as to costs. (Rajesh H. Shukla, J.) (hn)