1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.7042/2004. : : Nirmal Kumar Shukla Vs. State of Rajasthan & Ors. : : Date of Order 27.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.B.M.Sharma for the petitioner. Mr.S.S.Sharma, Govt.Counsel for the State. Reportable Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging his supersession by many of his juniors in promotion on the post of Naib Tehsildar against the vacancies of the year 1997-1998 and also the adverse entries recorded in his APAR of the year 1996-97 as conveyed to him by communication dated 5.9.1997. Shri B.M.Sharma, learned counsel for the petitioner argued that actually the respondents treated the petitioner as not eligible for promotion and did not consider his case only because of above referred to adverse entries conveyed to him vide communication dated 5.9.1997. 2 A bare reading of the communication dated 5.9.1997 reveals that in Para No.1 of Column No.10 and in Para No.2 of Column No.10 it is stated that in spite of instructions, the petitioner has not been able to send his duly filled in APAR form and this was treated as adverse entries. Learned counsel for the petitioner invited the attention of the Court towards the representation which he submitted against the aforesaid adverse entries on 4.1.1999, in which he asserted that he had actually sent the duly filled in APAR form on 12.4.1997. He has also with the representation produced the Under Postal Certificate (UPC) as proof for sending APAR form. Learned counsel submitted that though the petitioner has subsequently been promoted against the vacancies for the year 2000-2001, but many of his juniors were promoted against the vacancies of the year 1997-1998. The petitioner has suffered loss of promotion for four years, in which time he was superseded by many of his juniors. It was, therefore, prayed that the case of the petitioner be considered for promotion. Shri S.S.Sharma, learned Government Counsel opposed the writ petition and submitted that since there were adverse entries in APAR of the petitioner for the year 1996-97, the petitioner was not considered for promotion. 3 Action of the respondents cannot be faulted because it was bounden duty of the petitioner to timely send his duly filled in APAR form and if he failed to submit the same, that by itself provides sufficient reason to the Reporting Officer for recording adverse entries. Upon consideration of the aforesaid arguments and perusal of the material available on record, especially the reply to the writ petition, I find that the respondents have indeed taken a plea that since there were adverse entries in APAR of the petitioner for the year 1996-97, he was not considered eligible for promotion and was thus not considered for promotion against the vacancies of for the year 1997-98. Such assertion is made in paras No.2, 6 & 12 of the reply to the writ petition. Law is well settled that when a government servant falls within the zone of consideration for promotion and has any adverse entries against him for any year during the relevant period, he cannot for that reason be treated as ineligible for promotion. Although while considering his case for promotion the adverse entries may form part of the record, which the Departmental Promotion Committee (DPC) is entitled to take into consideration. Even otherwise, the so called adverse entries can hardly be treated as adverse in the 4 nature so as to justify either denial or deferment of promotion. Remark is only to the effect that the petitioner despite instructions did not timely submit his duly filled in APAR form. Non-submission of APAR form in the first place could not be taken as adverse entry because adverse entry postulates assessment of performance of an official and his rating by the Reporting/Reviewing Officer in terms of his efficiency and integrity. Secondly, the petitioner has in the representation asserted that he did in fact send the APAR form on 12.4.1997 under postal certificate. The appropriate course for the Reporting Officer in the present matter would have been to obtain the APAR form of the petitioner, who was posted within the same sub-devision, rather than treating non-submission of APAR form as adverse entry non- suiting the petitioner for promotion. Action of the respondents in treating the petitioner as ineligible for promotion and further treating the non-submission of the duly filled APAR form by itself as an adverse entry was, therefore, wholly arbitrary and illegal and deserves to be declared as such. In the result, this writ petition is allowed. The communication dated 5.9.1997 is quashed and set aside and the petitioner, who was within the zone of consideration for 5 promotion for the vacancies of 1997-98, is declared eligible for promotion. The petitioner may now submit duly filled in APAR form of 1996-97 to his Reporting Officer within four weeks and the respondents are directed to process and get the same filled in from the Reporting/Reviewing Officer within three months thereafter. In the event, the respondents fail to procure the comments of Reporting and/or of Reviewing Officer within the said period of three months, the petitioner would be entitled to average of his rating in the APAR of the preceding and succeeding year, for the purpose of promotion. The case of the petitioner shall be considered by convening review DPC of the year 1997-98 within one month thereafter and consequential orders of promotions, if the petitioner is eventually recommended for promotion, shall be passed within one month thereafter. The writ petition is accordingly allowed in the terms indicated above. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.17.