1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3174/98 Kailash Chandra Modi vs. Rajasthan State Electricity Board & Ors. Date of order : 13/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.D. Rastogi with Shri N.S. Chouhan for the petitioner. Shri Aklesh Jain, Deputy Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner Kailash Chand Modi aggrieved by his APR rating in the year 1994-95 and 1993- 94 with the prayer that his performance in the year 1994-95 be read either as outstanding or very good and his APR of the year 1993-94 should be directed to be reviewed. The petitioner has made allegations of mala fides against A.S. Chandna, the then Chief Engineer, RSEB and K.L.S. Tank, the then Superintending Engineer (M&P). It has been alleged that due to he mala fides of these officials, his performance was not correctly rated, as a result of which the petitioner was superseded by his juniors for promotion on the post of Superintending Engineer in the 2 quota of merit. Learned counsel for the petitioner has argued that the work of the petitioner was throughout rated outstanding by his superiors. He was however illegally given an adverse mark for the assessment of the year 1994-95 that he should maintain cordial relations with his colleagues and subordinates. This was despite the fact that his performance was rates as good. The adverse remark was given to him because of the mala fides of K.L.S. Tank. Petitioner submitted his representation on 19.19.1995 inviting attention of the competent authority that as per relevant instructions, the Reporting Officer was required to give specific reference of action taken or suggestions made to improve his working when any shortcoming was noticed by him. Therefore those remarks which may be even advisory in nature, have absolutely no basis. Reference in this connection was made to the Circular dated 18.1.1990. It was argued that for the year 1994-95, the performance of the petitioner was rated as good. It was on extraneous considerations, even though the petitioner has achieved 100% 3 results in the work of testing, commissioning and maintenance of various protection and materials equipment at different grid sub stations. Learned counsel submitted that this was done because of the biasness and vindictive attitude of A.S. Chandna. Petitioner found some defect in the meters supplied by one company M/s. Secure Meters Ltd. of Udaipur and he wrote a letter to the company for repairing the same, but A.S. Chandna became annoyed with the petitioner. K.S. Tank, respondent no.3 verbally instructed the petitioner that he should withdraw the letter written to M/s. Secure Meters Ltd. about the quality of meter because the son of K.S. Tank was working with the said firm. Learned counsel submitted that had the performance of the petitioner with respect of these years been rated as outstanding or very good, he could not have been superseded. It was therefore prayed that the writ petition be allowed. The respondents have filed their reply contesting the petition whereas Shri A.S. Chandna and K.L.S. Tank have both filed the counter affidavit rebutting the allegations 4 of mala fide. The respondents in reply to the writ petition have submitted that the performance of the petitioner for the year 1992-93 and 1993-94 were rated as good by both the Reporting Officer and Reviewing Officer and there were different Reporting and Reviewing Officers these years. There is no question of mala fide. As far as for the year 1995-96, 1996-97 and 1997-98 are concerned they were categorised either as outstanding or good. The allegations of mala fide are therefore not proved. Even though adverse remark was recorded in APAR of the petitioner for the year 1994-95, yet in that year also, his performance was rated good. The adverse remark was recorded by Reviewing Officer on the basis of objective satisfaction. The representation of the petitioner was accepted and the adverse remarks were expunged. In the following year i.e. 1997-98, A.S. Chandna himself has rated the petitioner's performance as outstanding. The allegations of mala fide are therefore not substantiated. It was contended that as per the seniority cum merit quota is concerned no person junior to the petitioner 5 was selected. However, in the merit / selection quota the requirement was that out of 7 at least 5 should be either outstanding or very good and that since the petitioner had only 3 such ratings and all those who have been promoted had 5, therefore, there can be no valid objection to their promotion. Both Shri K.L.S. Tank and A.S. Chandna have in their affidavit rebutted the allegation of mala fide. Shri K.L.S. Tank Reporting Officer of the petitioner has denied the allegations and stated that the supply of meters by M/s. Secure Meters Ltd. and that writing a letter by the petitioner to them has no bearing on the rating of the petitioner's performance. It has been explained that in 1994 for the purpose of industrial metering purpose, samples of various persons were taken and their technical experts were called. It was the Committee which has examined such meters and placed the supply order for the meters. He has no control so far as order for supply is concerned. If some of the meters are found defective, that could be because of the field conditions or their improper handling 6 and it will be met out by the company to repair or rectify such defect as they were required to do so under the conditions of supply. It has been denied that his son was at the relevant time employed by the said M/s. Secure Meters Ltd. The said letter was written by the petitioner on 26.7.1994 and he got employment as trainee executive for the first time in October, 1994. A.S. Chandna has also denied the allegation of mala fide and has made same averments. Learned counsel for the petitioner has rejoined and relied on the judgement of Supreme Court in U.P. Jai Nigam & Ors. vs. Prabhat Chandra Jain & Ors.-1996 (1) SLR 743 and argued that if the rating of the performance of an individual is down graded, the concerned authority is required to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advice. I have heard the learned counsel for the parties and given my anxious consideration to the rival submissions. So far as the argument that the 7 reporting / reviewing authority was required to report the reasons for the down grading of the performance of the petitioner and inform him of the same in the form of an advise is concerned, the judgement of Supreme Court in U.P. Jal Nigam, supra may not be of any help to the petitioner in the facts of the present case because the performance of the petitioner was rated constantly as good consecutively for five years i.e. 90-91, 91-92, 92-93, 93-94 and 94-95. In fact starting from 1995-96, the rating of the performance of the petitioner has seen upgradation i.e. in three years in quick succession. Thereafter i.e. in 1995-96 and 1997-98, the petitioner has been rated either very good and outstanding. The ratio of the judgement of Supreme Court hardly applies to the facts of the present case wherein for first five years, the rating of the petitioner was good and it has been upgraded to be either very good or outstanding during subsequent three years. There is no case for down grading which could be if the assessment made in the manner indicated above would be made in the 8 reverse order in which the petitioner would have been first rated as very good and outstanding and in the subsequent years his rate would have been good. In that event, the petitioner was justified in complaining about down grading. The allegations of mala fide are based merely on the assertion contained which the petitioner seeks to support of his affidavit and that is primarily based on the meter equipment supplied by one M/s. Secure Meters Ltd. Both the Chief Engineer and the Superintending Engineer who acted as Reporting / Reviewing Officer in their affidavit have denied the allegations of mala fide and have asserted that the supply orders were placed by the High Level Committee and not by them in their individual capacity and under the supply orders some meters were found faulty but that could be either due to field conditions or due to their mishandling. But then, the company is under an obligation to repair the defects. It cannot therefore be said that just because the petitioner has written a letter to the said company, the respondents 9 rated the performance of the petitioner as only good and not very good and then the years with reference to which the petitioner is rating from past years show that earlier also the performance of the petitioner was rated as good and he was not suddenly rated good. Finding of mala fide cannot be founded on the basis of inference and on facts otherwise also such an inference otherwise can be drawn because the petitioner was again rated good in the year 1993-94 and 1994-95. Such an inference would not be warranted on the facts in the preceding three years also because he has been continuously rated as good. The respondents have categorically stated in their counter affidavit that all those who were promoted had 5 out of 7 very good / outstanding ratings and petitioner had only 3 such ratings in the relevant year. He was therefore not promoted on the basis of merit quota and when it comes to merit obviously, assessment of the merit has to be based on comparative analysis and if those others, who have been promoted, had better merit than the petitioner, no grievance can be 10 raised. I therefore do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/