1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.579/1997 Tejpal Dheerawat vs. State & Ors. Date of order : 29/9/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Saxena for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner Tejpal Dheerawat assailing the adverse remarks recorded in his APARs of the year 1992-93 and 1993-94 and also two orders both dated 19.11.1996 rejecting his representation filed thereagainst. An additional prayer has been made that the respondents be directed to consider his candidature for promotion on the post of Assistant Commissioner by ignoring the above referred to two adverse remarks. Shri Sandeep Saxena, learned counsel for the petitioner has argued that the petitioner was at the relevant time posted as C.T.O. and that it was his duty to prevent tax evasion. A return was filed by one M/s. Suresh Kumar Agarwal, a Canteen Contractor, declaring turnover of Rs.5.50 2 lacs, whereas on survey being conducted by the petitioner in business premises of assessee and on verifying from the accounts books and other records of the said firm, he came to know that assessee was actually having annual turnover of Rs.60.5 lacs and he by declaring lesser turnover of Rs.5.50 lacs, had made an attempt to evade the tax. The petitioner in exercise of his powers as C.T.O. in the Jodhpur Division with a view to preventing tax evasion bona fidely wrote a letter dated 2.2.1993 to Joint Director, Oil and Natural Gas Corporation, Jodhpur stating inter alia that the assessee has made an attempt to evade the tax and therefore he asked that till assessee submits the Tax Clearance Certificate for the relevant assessment year to them, no payment should be made to him. This effort of the petitioner was appreciated by the Deputy Commissioner, Anti Evasion, Commercial Taxes, Jodhpur as is evident from the report sent by him to the Commissioner vide his letter dated 5.3.1993. The Contractor without any basis made a 3 complaint to the Additional Commissioner Shri R.M. Kothari that petitioner demanded illegal gratification from him, who imputed motives to the petitioner, without supplying copy of any such complaint. The Additional Commissioner made adverse remarks against the petitioner in his APARs of two years referred to above and on that basis his promotion was sought to be delayed. The petitioner immediately approached this Court and this Court was persuaded to stay operation of the orders rejecting his representation. It is submitted that subsequently final assessment order against the above referred to assessee was framed on the basis of the annual turnover of Rs.60.5 lacs which was computed by the petitioner and on that basis, he was taxed. Even the penalty was awarded, but subsequently in appeal filed by him, the Deputy Commissioner (Appeals) waived the penalty, but nevertheless stand of the petitioner was vindicated because annual turnover of the said assessee, as was computed by the petitioner in the survey 4 proceedings, was held to be correct. The petitioner was granted promotion because of the interim order passed by this Court and ultimately he has retired from service in the year 2007 having been granted all the benefits. It is prayed that the writ petition be allowed and the petitioner be allowed to retain all the benefits which he has already received. Per contra, Shri S.D. Khaspuria, learned Additional Government Counsel submitted that petitioner had no authority to write letter to the Joint Commissioner, ONGC unless the assessment order was framed and a demand of tax was raised. Asking the ONGC to stop payment of the contractor by the petitioner was without jurisdiction. The reporting authority of the petitioner therefore rightly recorded adverse entries in his APARs on the basis of complaint received from assessee that petitioner was demanding illegal gratification. It is submitted that adverse remarks were fully justified even if ultimately tax has been levied on the basis of higher amount of turnover than what was 5 declared by assessee. It is also argued that scope of interference by this Court under Article 226 of the Constitution of India in matters of adverse remarks is quite restricted. This Court cannot go into correctness of adverse remarks because it is best judged by the immediate superior officer, who watches performance of the reportee from close cadre, therefore, his opinion cannot be substituted by this Court. Petitioner had no right to directly come to this Court under Article 226 and appropriate remedy available for him was to approach the Rajasthan Civil Services Appellate Tribunal, if eventually he was adjudged not suitable for promotion and was superseded by any of his juniors. It is therefore prayed that the writ petition be dismissed. Shri Sandeep Saxena, learned counsel for the petitioner has rejoined and submitted that the petitioner had to take the action of writing letter to ONGC to stop all the payments of assessee because assessee had already wound up his business from Jodhpur and had moved to Dehradoon. If the entire 6 payment was released, there was no way that the recovery of tax could be ensured. He acted in a most vigilant and bona fide manner to safeguard interest of the revenue. Having heard the learned counsel for the parties and perused the material on record, I have carefully scanned the entire material on record. It is indeed surprising as to how when in the survey proceedings, petitioner found annual turnover of assessee twelve times more than what was declared by him, adverse remarks could be recorded in his APARs and this is all the moreso because stand of the petitioner is fortified from the ultimately framed assessment order wherein tax has been levied on the assessee on the basis of turnover computed by the petitioner. What he did was actually part of his duties as CTO, Anti Evasion and which is why his action was appreciated by the Deputy Commissioner, Anti Evasion, Commercial Taxes, Jodhpur. This Court persuaded by strength of his arguments passed an interim order on 30.7.1997 staying operation and effect of 7 orders rejecting the representation against those adverse remarks. During the pendency of the writ petition, petitioner's case came up for consideration for promotion and he was recommended for promotion and was accordingly promoted to the post of Assistant Commissioner and thereafter even promoted to the post of Deputy Commissioner from which post he retired. He has thus received all the benefits, which were otherwise due to him. In the circumstances, this writ petition deserves to be allowed and is accordingly allowed. The impugned orders dated 19.11.1996 and the adverse remarks in the APARs of the year 1992-93 and 1993-94 are quashed and set aside. The petitioner is held entitled to retain all those benefits, which he has already received. No order as to costs. (MOHAMMAD RAFIQ), J. RS/