IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.6425 OF 1988 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters 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? --------------------------------------------------------- N.I. MEHTA VERSUS THE STATE OF GUJARAT AND ANR. --------------------------------------------------------- Appearance: The Petitioner present in person MR DA BHAMBHANIA for the Respondents --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision:20.3.97 C.A.V. JUDGMENT The petitioner has appeared in this case in-person and on the last date, i.e. 9th January 1997, he has completed his submissions and the matter has been adjourned for 18.1.97 for hearing of the arguments of learned counsel for the respondent. The petitioner had to undergo surgical operation and as such, he prayed on the last date for exemption of his personal appearance on 18.1.97, which was granted. 2. The petitioner who is an officer of Industries Department of State of Gujarat filed this petition before this Court and questioned therein, the legality, propriety and correctness of the order dated 11th August 1987 of the Government of Gujarat under which he was ordered to be prematurely retired. Otherwise also the petitioner would have retired on attaining the age of superannuation on 31st March 1989. 3. The facts of the case are that the petitioner entered into the service of the erstwhile State of Bombay as Malaria Supervisor in 1953. In 1957, he was transferred to Industries Department as Junior Industries Inspector. The petitioner was promoted to the post of Senior Industries Inspector, to Industries Officer, to the post of Assistant Commissioner of Industries and Deputy Commissioner of Industries. The petitioner was due for promotion to the post of Joint Commissioner of Industries, as what he stated that throughout his career, he was having meritorious service to his credit. The petitioner was promoted to the post of Industries Officer on 6.7.66, but before he could resume charge of the new post, his promotion was withheld. The petitioner has made a statement in the Special Civil Application that barring communication of adverse remarks in the year 1966-67 and 1967-68, no adverse remarks were communicated to the petitioner till 1986. The petitioner filed, in the year 1966, Special Civil Application No.1035 of 1966. During the pendency of the said petition, the petitioner was superseded by his juniors. This Court has passed the order in favour of the petitioner, but the respondents preferred L.P.A. No.142 of 1972 which has also been dismissed. The petitioner was directed by this Court to exhaust administrative remedies. The petitioner moved the authorities through number of representations, but as the authorities did not do justice to him, he filed Special Civil Application No.2457 of 1980 before this Court. In this petition, this Court has passed the order in favour of the petitioner directing the respondents to accord deemed date of promotion to the petitioner in the cadre of Industries Officer since August 1966. Further directions were issued to respondents to consider the case of petitioner for promotion to the post of Assistant Commissioner of Industries, Deputy Commissioner of Industries and Joint Commissioner of Industries, taking into consideration his deemed date of promotion in the cadre of Industries Officer as August 1966. This Court has further directed the respondents to grant all consequential and monetary benefits in the event the petitioner is found suitable for promotion to different promotional posts as aforesaid. In pursuance of the order of this Court, the petitioner has been given deemed date in the cadre of Industries Officer by promoting him from 1st August 1966, but difference in the salary has not been paid. The petitioner states that he should have been given the deemed date of promotion in the cadre of Assistant Commissioner since February 1975 as against his actual promotion to the post of Assistant Commissioner in September 1977. Similarly, he stated that promotion to the post of Deputy Commissioner of Industries from May 1978 should have been given as against the actual promotion to the said post in June 1981. As the deemed date of promotion on the post of Assistant Commissioner and that of Dy. Commissioner has been corrected, he is entitled to be promoted to the post of Joint Commissioner of Industries on 22.3.82, the day when an officer, namely Shri H.M. Joshi, junior to the petitioner was promoted. As the directions of this Court given in Special Civil Application No.2457 of 1980 were not complied with fully, the petitioner has initiated contempt proceedings against the respondents. 4. The petitioner received two letters dated 3.1.86, communicating adverse remarks incorporated in the Confidential Report of the petitioner for the period from 1st April 1984 to 31st March 1985. In another letter of same date, the adverse remarks pertaining to part III of the Confidential Role were communicated. I shall deal with these remarks given to the petitioner at the appropriate stage in this judgment. The petitioner made a representation against those remarks vide his representation dated 6.2.86. Under the order dated 4.12.86, the Government of Gujarat expunged the adverse remarks pertaining to his character and temperament and relation with his colleagues and general public as well as with regard to exercise of delegated authority. As one of the adverse remarks was not expunged, the petitioner filed his representation dated 23rd December 1986 and 11th March 1987, seeking interview with the Secretary, Industries, Mines and Energy Department of the Government of Gujarat, Ahmedabad. The petitioner was called upon for interview as prayed for, by the Secretary on 13th May 1987. The petitioner appeared before the Secretary, Industries, Mines and Energy Department on 13.5.87, but before the result of the said interview was communicated to the petitioner, he was ordered to be prematurely retired with effect from 13th August 1987 under the impugned order. 5. The Industries Commissioner, vide his letter dated 22nd September 1986, communicated the adverse remarks as incorporated in his Confidential Report for the year 1985-86. The overall assessment of the work was reported to be fair. It has further been mentioned in the said letter that whatever remarks given therein were not considered adverse and no representation would be entertained from the petitioner as the object of communicating those adverse remarks was to enable the petitioner to improve his performance. On the same day another letter has been received by the petitioner in which it was conveyed that his initiative, resourcefulness and willingness to assume responsibility was reported as "needs persuasion to entrust additional responsibility". His capacity to take a quick and sound decision was reported as "takes sound decision but sometimes refers cases for guidance". His character and temperament including relation with fellow officers and general public was reported as "needs improvement to get alongwith fellow officers and general public". The petitioner made a representation on 14th October 1986, but that has not been disposed of. The petitioner has challenged, the validity and correctness of the adverse remarks given to him in the Special Civil Application. The petitioner has also challenged the validity of the order of premature retirement on the ground that his case was not fairly and impartially considered. Only on the basis of one adverse remarks in one column wherein it has been reported that the petitioner requires persuasion for entrustment of additional responsibility, he has been considered to be a dead wood, which is a perverse approach. The sole object and purpose of the Government was to get rid of the petitioner without taking into account his work and performance. Against the order of premature retirement, the petitioner represented to the Secretary of the Department on 9th September 1987, but this representation came to be dismissed by the Government under letter dated 5.1.88. The petitioner made a representation to the Hon'ble Chief Minister of the State of Gujarat vide his representation dated 24th January 1988 and also prayed for granting him personal hearing. This request was turned down vide letter dated 6th September 1988. Hence this Special Civil Application before this Court. After filing of this petition, the petitioner made amendment in the Special Civil Application and few additional points have been raised. 6. The respondents filed affidavit in reply to which the petitioner has filed affidavit in rejoinder. The petitioner has filed written arguments and alongwith the same, he has also filed copies of judgments given by Hon'ble Supreme Court and by this Court. The petitioner filed many documents in support of his case. 7. I have called upon the respondent to produce the service record of the petitioner before this Court. The learned counsel for the respondents has given out the record in the form of gist of statements, which is taken on record. The statements showing service record of the petitioner, has been given from the year 1976-77 to 1986-87. In the year 1976-77, no adversity has been pointed out. In 1977-78, it has been stated that minor penalty of censure has been given to the petitioner under the order dated 9.9.77 and a copy of the said order has been enclosed. There is nothing adverse in the service record for the years 1978-79, 79-80, and 1980-81. In 1981-82 in his annual Appraisal Performance Report, part III thereof, at item No.4 (i) under the head "initiative resourcefulness and willingness to assume responsibility", it has been reported "O.K.". It has been mentioned in the statement that the petitioner was not conveyed anything adverse in this year. In 1982-83 in part III, column 10, the overall assessment of the petitioner has been mentioned as, "an ordinary type of officer". These remarks have been communicated to the petitioner on 12th September 1983, but the respondents have stated as a fact in the statement that these remarks were only suggestive remarks. In the year 1983-84 there was no adversity in the service record of the petitioner. Then comes the remarks of the year 1984-85. In part III, column 4(i) regarding initiative resourcefulness and willingness to assume responsibility, it has been remarked as, "needs persuasion to entrust additional responsibility', and in column 4(iv) regarding Character & temperament including relation with fellow officers and general public, it has been mentioned as, "needs improvement to get alongwith fellow officers and general public". Again, under column 5, under the head, "has he properly exercised delegated powers or does he have a tendency to refer cases back for guidance?", it has been remarked as, "Yes, but sometimes, refer cases for guidance". In part III, columns No.2, 4(ii) and 4(iii), under the heads, namely, "what is your assessment of his clarity of thought and power of expression on paper", " capacity for organisation and to get work from subordinate", and "capacity to take quick and sound decision" respectively, the remarks have been given as "fair" for all three columns, i.e. column No.2, 4(ii) and 4(iii). Under column No.10 entitled "overall assessment" it has been remarked as "an average officer". The petitioner was communicated with these remarks for the year 1984-85 on 3.1.86. So far as second part of the remarks, i.e. remarks under columns No.2, 4(ii), 4(iii) and 10, is concerned, it has been mentioned in the said statement that these remarks are "suggestive remarks". Out of the first part of three remarks, i.e. remarks under columns No.4(i), 4(iv) and 4(v), on the representation made by petitioner, under the Government order dated 27.10.86, the remarks under column 4(i) were retained, but the remarks against columns 4(iv) and 4(v) were cancelled. Then comes the year 1985-86 and the remarks which have been given for this year, under different heads, are as under: 1985-86: Part-III 4(1) Initiative resourcefulness and willingness to assume responsibility: -- Needs persuasion to entrust additional responsibility 4(3) Capacity to take quick and sound decision: -- Take sound decision but sometimes refer cases for guidance 4(4) Character and temperament including relation with fellow officers and general public: -- Needs improvement to get alongwith fellow officers and general public 4(ii) Capacity for organisation and to get work from subordinates -- Fair 4(iv) Character and temperament including relation with fellow officers and general public -- Fair 10 Overall assessment -- Fair 1985-86 Part IV 4 Overall assessment including mention of outstanding work, if any -- A good officer but in Amreli Dist. provided too little by way of challenge The remarks at column No.4(ii), 4(iv) and 10 were reported to be fair and they were communicated under the head, "suggestive remarks". So far as the remarks under columns 4(1), 4(3) and 4(4) are concerned, those remarks were communicated to the petitioner against which a representation has been filed by the petitioner, which has admittedly been not decided. So far as remarks under column No.4, part IV are concerned, they were not communicated to the petitioner. 8. The remarks for the year 1986-87, in the Annual Appraisal Report of the petitioner reads as under: 1986-87 Part IV 4 Overall assessment including mention of outstanding work, if any -- A barely adequate officer. His improvement in controlling his temper is not complete by any means. Those remarks have not been communicated to the petitioner and the reason has been given that the petitioner was ordered to be compulsorily retired from 13.8.87. 9. The facts which are not in dispute are that the petitioner was allowed to cross Efficiency Bar on the post of Deputy Commissioner, Industries, with effect from 1.6.84 under the order of Industries, Mines & Power Department, dated 30th October 1984. The petitioner was given deemed date of promotion on the post of Assistant Commissioner from 1.3.75 and on the post of Deputy Commissioner from 1.5.78. These deemed promotions were given to the petitioner under the order dated 24.11.88 of the Government, i.e. after his premature retirement. The petitioner was promoted to the post of Joint Commissioner under the order dated 4.11.89 from 4.4.85. The petitioner was not satisfied with that promotion and he filed Special Civil Application No.12549 of 1993 before this Court and prayed for giving him the deemed date of promotion to the post of Joint Commissioner from 22nd March 1982. That Special Civil Application came to be allowed by this Court under the order dated 8.4.96 and direction was given to consider the case for deemed date of promotion, and thereafter under the order dated 30th July 1996, the petitioner was given deemed date of promotion on the post of Joint Commissioner from 22nd March 1982. It is also not in dispute that promotion on the post of Deputy Commissioner of Industries and Joint Commissioner of Industries are to be made on the basis of proved merits and efficiency. 10. The petitioner contended that the order of the Government to prematurely retire him from the services has not been made in public interest. It has further been contended that taking into consideration the totality of the facts of this case, that decision of the Government to retire the petitioner prematurely cannot be said to be fair and impartial. The service record of the petitioner is not that much bad as he may be considered to be a deadwood and should have been chopped of. Carrying further the contention on merits of adverse remarks given to him, the petitioner contended that there was no basis whatsoever for those remarks and even if those remarks are taken to be adverse, then there is nothing reported against him of his integrity as well as his character, honesty, diligence, hard work, sincerity, etc. In support of his contentions, the petitioner placed reliance on many of the decisions of Hon'ble Supreme Court and this Court and xerox copies thereof has also been produced on the record. Lastly, the petitioner contended that one or two stray adverse remarks here and there in the service record should not have been considered while making overall assessment of his service record. The petitioner was promoted on the post of Industries Officer, Asstt. Commissioner, then on the post of Deputy Commissioner and lastly on the post of Joint Commissioner of Industries, which shows that he was a meritorious officer. The grievance of the petitioner is that the compulsory retirement has been ordered only as the petitioner has raised voice against injustice which has been meted to him by the Department by filing Special Civil Applications from time to time before this Court as well as also by initiating Contempt proceedings. He was not given promotion to the aforesaid posts when his turn came and that is the reason he has to complaint before this Court and his cases were accepted and ultimately the respondents have corrected the date of his promotion on the aforesaid posts. In the written arguments, the petitioner has raised manifold arguments in support of his case. 11. On the other hand, the learned counsel for the respondents, Shri Bhambhania contended that it is a subjective satisfaction of the authority on which this Court will not sit as an Appellate Authority. It has next been contended that in the matter of compulsory retirement, this Court has very very limited judicial power of review and if there is some material on record to form the opinion against the petitioner to retire him prematurely, the said decision does not call for interference of this Court under Article 226 of the Constitution of India. However, the learned counsel for the respondent fairly conceded the facts which have been stated by the petitioner and which I have noticed above in this judgment. In support of his contention, the learned counsel for the respondent placed reliance on the following decisions of the Hon'ble Supreme Court: AIR 1992 SC 1020 -- Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. AIR 1994 SC 1261 -- Union of India v.V.P.Seth and Anr. AIR 1996 SC 2436 -- State of Orissa & Ors.v. Ram Chandra Das 12. I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. 13. The statement showing the details of adverse remarks in the confidential report of the petitioner from the year 1976-77 to 1986-87 gives out that for all these years, there was only an adversity of minor penalty of censure vide order dated 9.9.77 given to the petitioner. So far as the adverse remarks are concerned, there were no adverse remarks from the year 1976-77 to 1980-81 and same state of affairs may be accepted for the year 1981-82. In the year 1982-83, nothing adverse has been reported against the petitioner. The overall assessment was, "an ordinary type of officer" which has been communicated to the petitioner under the head, "suggestive remarks". So in this year also, there was no adversity. Admittedly, in the year 1983-84, nothing adverse has been reported against the petitioner. In the year 1984-85, three remarks were made against the petitioner. It is not in dispute that out of which, two remarks of columns No.4(iv) and 4(v) in part-III were expunged. The remarks made in column No.2, 4(ii), 4(iii) and 10 were communicated to the petitioner, which were reported to be fair and the petitioner's overall assessment was made as, "an average officer". It is significant to note that those remarks aforesaid were communicated to the petitioner under the head, "suggestive remarks". So in the year 1984-85, there was only one adverse remark namely, i.e. "needs persuasion to entrust additional responsibility", under column 4(i) of part III. 14. If we go by remarks for the year 1985-86, even then, the remarks contained in column No.4(ii), 4(iv) and 10 of part III were reported to be `fair' and they were communicated under the head "suggestive remarks". So far as the remarks under column No.4(1), 4(3) and 4(4) are concerned, though the same were communicated to the petitioner, but admittedly the representation filed by him against these remarks has not been decided. The overall assessment in part III of the report was reported to be fair. So far as part IV of the year 1985-86 is concerned, the overall assessment was made to be, "a good officer, but in Amreli District provided too little by way of challenge". It is not in dispute that for the year 1986-87, remarks were given, "a barely adequate officer. His improvement in controlling his temper is not complete by any means." But these remarks have not been communicated to the petitioner as he was ordered to be retired compulsorily on 13.8.87. So, in all, this is the totality of adversity against the petitioner. It is an admitted case of respondent that the petitioner was allowed to cross Efficiency Bar with effect from 1.6.84. So, the un-expunged adverse remarks for the year 1984-85 were not treated as adverse and very serious by the Department itself. Then comes the promotion of the petitioner as Joint Commissioner of Industries with effect from 4.4.85 after considering the service record which is inclusive of confidential report for the year 1984-85. It is true that promotion has been given after compulsory retirement of the petitioner but with effect from 4.4.85. The petitioner was not fully satisfied with this promotion as he was claiming promotion from 22.3.82 and as such, he filed Special Civil Application 12549 of 1993 before this Court which came to be accepted and directions were given to the respondents to consider the representation of the petitioner. The representation of the petitioner was found favour with the Department and he was ordered to be promoted to the post of Joint Commissioner of Industries with effect from 22.3.82. From the facts which have given out by petitioner in Special Civil Application as well as written arguments it is clear that injustice was meted to the petitioner from time to time and he was compelled to approach this Court. The second petition has been filed by him, being Special Civil Application No.2457 of 1980 which was decided on 14th October 1987, i.e. after his compulsory retirement. The grievance of the petitioner in the Special Civil Application seems to be that he was not given promotion in different cadres at appropriate time. The decision of this court was given effect to only after the petitioner filed the Contempt Petition and from the written arguments at page 185, it is borne out that his date of promotions on the post of Industrial Officer, Assistant Commissioner of Industries, Deputy Commissioner of Industries were suitably modified. The petitioner was also given promotion to the post of Joint Commissioner of Industries. The details of the same are as under: -------------------------------------------------------- CADRE ACTUAL DEEMED DATE OF DATE OF PROMOTION PROMOT- ION --------------------------------------------------------- Industries Officer 14.8.1974 1.8.1966 Asstt. Comm. of Industries Sept. 1977 1.3.1975 Dy. Comm. of Industries 20.6.1981 1.5.1978 Jt. Comm. of Industries 4.4.1985 vide order dt. 4.11.1989 -------------------------------------------------------- 15. The third litigation has been taken by the petitioner regarding his deemed date of promotion on the post of Joint Commissioner of Industries from 22.3.82. The first petition has been filed by the petitioner challenging therein the vindictive attitude of the Government in the year 1966 being Special Civil Application No.1035 of 1966 which has been decided in his favour and the LPA filed by the Government against the said decision has also been rejected. So there seems to be some justification in the say of the petitioner that because of litigations which have taken from time to time for redressal of grievance by the petitioner before this Court, he was ordered to be compulsorily retired from the services. 16. Though the adverse remarks against which the representation is pending could have been considered for deciding the matter whether the petitioner should be prematurily retired or not, but in the facts of the present case, more so when there was only one remark which was not of serious