1 I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN AT JAI PUR BENCH, JAI PUR Lal Chand Panw ar vs. Th e St at e of Raj ast h an & Or s. ( S.B. CI VI L W RI T PETI TI ON NO. 4 6 1 / 1 9 9 6) Dat e of Or der : 2 4 / 1 0 / 2 0 0 8 PRESENTS HON'BLE MR. JUSTI CE RAGHUVENDRA S. RATHORE Ms. Ashish Joshi, for the petitioner(s). Ms. Parinitoo Jain, Government Counsel for the State. By t h e Cou r t : ( Or al) . This writ petition has been directed against the order dated 29.11.1990 (Annexure-6) and the order dated 05.06.1991 (Annexure-8). The petitioner has prayed that the said impugned orders be quashed and set aside and he may be given all consequential benefits. Further, it is prayed that the respondents be directed to confirm the petitioner on the post of Lecturer w.e.f. 23.03.1992, the date from which persons junior to him had been confirmed, vide order dated 27.07.1994 (Annexure- 10), and all consequential benefits be given to him. It has also been prayed by the petitioner that he may be promoted on the post of Senior Lecturer w.e.f. the date when persons junior to him had been given promotion, vide order dated 16.10.1995 (Annexure-14 and 15) and he may be given all consequential benefits. 2. The brief facts giving rise to this writ petition are that the petitioner was appointed, temporary basis, on the post of 2 Lecturer, Electronics Engineering under the Rajasthan Technical Education Service Rules, 1973. The said appointment was made after due selection by the Rajasthan Public Service Commission. The petitioner was at serial No. 6 in the merit and his name in the appointment order dated 10.08.1989 was accordingly placed. 3. While the petitioner was working on the post of Lecturer, he was deputed to attend a short term course on 'Teaching Methodology' at Technical Teachers' Training Institute, Chandigarh, vide order dated 03.05.1990. The said short term course was from 11.06.1990 to 29.06.1990 (Annexure-2). Alongwith the petitioner, who at serial No. 20, many other persons were deputed for the short term training course, as for instance, Shri Anil Kumar Purohit, Satya Narayan Tak and Anil Kumar Swarankar, who's names appeared at serial No. 24, 23 and 34 respectively, in the order of 03.05.1990. Shri Anil Kumar Purohit was also a Lecturer in Electronics Engineering and was posted with the petitioner at Government Polytechnic Institute, Pali. 4. The petitioner had suddenly fallen ill and had to undergo medical treatment at S.M.S. Hospital, Jaipur. Therefore, due to his illness he was not in a position to attend the training programme at Chandigarh. The petitioner had submitted an application to the Principal, Government Polytechnic College, Pali, on 09.06.1990 seeking permission for not attending the said training programme. The petitioner had also telegraphically 3 informed, about the illness and unability to attend the training programme, to the Principal Polytechnic College, Pali; the Director of Technical Education and the Technical Teachers' Training Institute, Chandigarh. The petitioner had also submitted the medical certificate of illness to the Principal of the College at Pali. 5. The Principal Government College Pali had, however, called for the explanation from the petitioner by his letter dated 25.06.1990. The Principal also withheld the salary of the petitioner for the period from 11.06.1990 to 29.06.1990. He had again called for explanation from the petitioner vide letter dated 20.07.1990. A reply to the same was filed by the petitioner on 24.07.1990. 6. Subsequently, the Principal of the College, Pali had informed the petitioner that since he had failed to attend the training programme, an adverse entry would be recorded in his Annual Performance Appraisal Report for the year 1989-90. Accordingly the petitioner was communicated the adverse entry, recorded in his A.P.A.R., for the year 1989-89 (Annexure-6). Thereafter, the petitioner made representation on 19.12.1990 against the said adverse remark but the same was rejected by order dated 05.06.1991. 7. The confirmation of the petitioner on the post of Lecturer had become due in the year 1992. The State 4 Government vide its order dated 27.07.1994 confirmed the services of 45 lecturers. The said order included the confirmation of the persons who were junior to the petitioner such as Ms. Rajul Singhal, Lav Bhargava, Jai Shanker Purohit, Smt. Archana Arora and Anil Kumar Agarwal. But the name of the petitioner was not even considered for confirmation. The non-confirmation of the services of the petitioner is said to be on account of not attending the training programme at Chandigarh. The petitioner then submitted a representation against the action of respondents for not confirming his services. However, the said representation remained unanswered. 8. In the year 1989-90, the petitioner gave option for joining two more training programmes conducted at Technical Teachers' Training Institute, Chandigarh. The name of the petitioner was sponsored by the Joint Director, Technical Education, Jodhpur for short term course on 'Colour Televisions' from 10.12.1990 to 21.12.1990 at Technical Teachers' Training Institute, Chandigarh, vide order dated 29.08.1990. But the Principal, Polytechnic, Jaipur, by his order dated 05.12.1990, refused to relieve the petitioner so as to join the said training programme. 9. Later on, the respondents had issued orders dated 16.10.1995 whereby persons junior to the petitioner were promoted on the post of Senior Lecturer. The said persons were Smt. Rajul Singhal, Shri Lav Bhargava & Shri Jai Shanker 5 Purohit. Being aggrieved of the action of the respondents in awarding adverse entry in A.P.A.R. of the petitioner, withholding his confirmation on the post of Lecturer and denying him the promotion on the post of Senior Lecturer, he has filed the present writ petition. 10. The respondents have contested the writ petition by way of filing reply. It is stated in the reply that there were two charges pending against the petitioner, namely, one for willful absent from duty for the period from 30.06.1992 to 29.08.1992 for which the Department of Personnel has initiated proceedings under Rule 17 of C.C.A. Rules and a penalty was awarded to the petitioner. Second charge was that the petitioner did not attend the training programme organized by T.T.T.I., Chandigarh from 11.06.1990 to 29.06.1990. 11. It was also stated in the reply that the petitioner was transferred from Government Polytechnic College, Pali to Government Polytechnic College, Jaipur, vide order dated 07.06.1990. The petitioner joined his duty at Jaipur on 26.06.1990. Thereafter, the petitioner was transferred on 16.06.1992 from Government Polytechnic College, Jaipur to Government Polytechnic College, Barmer. In compliance of the said order, the petitioner was relieved on 29.06.1992 so as to join his duty at Barmer. The Principal, Government Polytechnic College, Barmer had also sent a communication to the petitioner on 18.07.1992 to join the duty immediately. The Director, 6 Technical Education had also sent a letter on 27.07.1992, directing the petitioner to join his duty immediately. Later on, the concerned authorities, vide their letter dated 04.12.1992, requested the Stated Government to initiate disciplinary action against the petitioner. Accordingly, the State Government on 04.01.1993 informed the petitioner that as he remained absent willfully from duty from 30.06.1992 to 29.08.1992 and therefore, why disciplinary action may not be initiated against him. The petitioner was to give his explanation to the State Government within 15 days, through the Directorate of Technical Education, Jodhpur. 12. The respondents have further stated in the reply that the State Government, vide letter dated 31.08.1992, cancelled the order of transfer of the petitioner. On the same day, the petitioner joined his duty at Government Polytechnic College, Jaipur. Thereafter, he submitted his sickness and fitness certificate. He had also submitted an application for sanction of leave for the period from 06.07.1992 to 29.08.1992. The Department of Personnel had issued a Memorandum on 13.05.1994 asking the petitioner to give his explanation within 15 days. After holding the charges, levelled against the petitioner, to be true and correct the Department of Personnel, Jaipur, issued an order on 26.09.1994 awarding punishment of stopping of two annual grade increments without cumulative effect. A review petition was then filed by the petitioner, on which the punishment was partly modified to stopping of only 7 one annual grade increment without cumulative effect, vide order dated 01.05.1995. 13. It has also been stated by the respondents that in fact the petitioner had not joined duty at Government Polytechnic College, Barmer and willfully remained absent, that the State Government had to initiate disciplinary proceedings against him under Rule 17 of the C.C.A. Rules for his willful absence from 30.06.1992 to 29.08.1992 and awarded the aforesaid punishment. It was also stated in the reply that the Directorate of Technical Education had made recommendations on 15.03.1995 to confirm the petitioner w.e.f. 23.03.1992. For the aforesaid reasons, the respondents have stated that no illegality or violation of any provisions of law had been committed in the case of the petitioner. 14. At the outset, it may be stated that subsequent to the filing of the writ petition, the petitioner had challenged the punishment awarded to him, in the proceedings under Rule 17 of the C.C.A. Rules for willful absence from duty for the period from 30.06.1992 to 29.08.1992, by way of filing a writ petition (3602/ 1992) before the High Court. The said writ petition came to be decided on 21.09.2001 whereby the same was accepted and the order dated 11.05.1994, awarding punishment of stoppage of one grade increment without cumulative effect, was set aside. Later on a Review Petition (83/ 2001) was filed, whereby the charge-sheet (Annexure-9) issued to the petitioner 8 was also quashed and set aside by the High Court, by order dated 03.12.2001. Thereafter, the petitioner was made permanent on the post of Lecturer, vide order dated 09.05.1996 (Annexure-RR/ 5). The respondents had also gave promotion to the petitioner on the post of Senior Lecturer, vide order dated 18.09.2002. The said promotion was against the vacancies of the years 1997-98. 15. In view of the subsequent developments that is, the charge-sheet issued against the petitioner having been quashed and set aside; the service of the petitioner was regularised from 23.03.1992 and he was given promotion on the post of Senior Lecturer, against the vacancy of the years 1997-98, much grievance of the petitioner stands redressed. So far as the prayer of the petitioner in respect of his confirmation on the post of Lecturer w.e.f. 23.03.1992 is concerned, the same stands fulfilled as nothing remains in that regard. Another prayer of the petitioner, to promote him to the post of Senior Lecturer has become infructuous to the extent that he has been promoted by order dated 18.09.2002 against the vacancy of the years 1997- 98. Consequently, the remaining relief prayed for by the petitioner is against the order of communicating adverse remark and also the rejection of the representation made against it. Another relief sought for by the petitioner and which remains to be considered, is in respect of his promotion to the post of Senior Lecturer against the vacancy of 1995-96. 16. The case of the petitioner is that he was deputed to 9 attend the training programme at T.T.T.I., Chandigarh, commencing from 11.06.1990 but due to unavoidable circumstances that is the sudden illness for which he had to take medical treatment at S.M.S. Hospital, Jaipur, he was unable to proceed for the same. It has been further submitted that as soon as the petitioner had become indisposed, he submitted an application on 09.06.1990 to the Principal, Government Technical College, Pali and had also intimated the Director, Technical Education as well as the Technical Teachers' Training Institute, Chandigarh. When the respondents called for the explanation from the petitioner on 25.06.1990, he had submitted his reply as well as the medical certificates on the same day, in support of his submission that due to illness he was not able to proceed for the training programme. According to the learned counsel for the petitioner, the respondents had, instead of considering the reply/ explanation as well as the documents submitted by the petitioner objectively, withheld his salary for the period from 11.06.1990 to 09.06.1990. Not only that, after withholding the salary, again an explanation was called for on 20.07.1990, which was promptly responded by the petitioner on 24.07.1990. But respondents had not considered the same, much less to say decide it with cogent reasons. 17. It is also the case of the petitioner that the respondents had been discriminating the petitioner, so much so, that some other persons who were deputed for the training programme by the same order i.e. 03.05.1990, had also not 10 proceeded to T.T.T.I., Chandigarh. Moreover, such persons had not even sent any intimation/ information much less to say have the requisite permission from the authority concerned for not attending the training programme. Those persons had failed to attend the training programme without any just cause, whereas the petitioner was unable to proceed on account of his sudden illness. It has also been submitted by the learned counsel for the petitioner that the respondents had not only acted in an arbitrary manner in not objectively considering the application of the petitioner for permission not to attend the training programme, the confirmation of the petitioner on the post of Lecturer was not done, alongwith other similarly situated persons, by the order dated 27.07.1994. According to the counsel for the petitioner, the arbitrariness and unreasonableness of the petitioner was not only to the extent of non-confirmation but the petitioner was again deprived of his due promotion to the post of Senior Lecturer when the persons junior to him were so given on 16.10.1995. 18. On the other hand, the case of the respondents is that the petitioner had failed to attend the training programme for which he ordered to proceed in the month of June, 1990. Furthermore, it is the case of the respondents that when the petitioner was transferred to Government Polytechnic College, Barmer, he had disobeyed the order and did not join his duty. He had also willfully absented himself from 30.06.1992 tp 29.08.1992. For the said reasons, the respondents have submitted that the petitioner is not entitled to any relief from 11 this Court and his writ petition deserves to be rejected. 19. As mentioned above, so far as the grievance of the petitioner in respect of his confirmation of services from 23.03.1992 is concerned, it is fully redressed by the order dated 09.05.1996 passed by the respondents. Similarly, the petitioner had also been given promotion to the post of Senior Lecturer against the vacancy of the years 1997-98 by the order passed the respondents on 18.09.2002. 20. In so far as issuance of adverse entry in the A.P.A.R. of the petitioner by the impugned order dated 29.11.1990 as well as the rejection of his representation vide order dated 05.06.1991 are concerned, in my view, the same are illegal, contrary to law and therefore deserves to be set aside. The adverse remarks communicated to the petitioner on 29.11.1990 were immediately objected to by filing a representation on 19.12.1990. The said representation had been rejected on 05.06.1991 in a summary manner without giving any reason, much less to say cogent reasons, as to why the representation of the petitioner did not find favour. The rejection order dated 05.06.1991 (Annexure-8) reads thus: - "ǒवषय :- वष[ के वाǒष[क काय[ मूãयांकन ूितवेदन मɅ ूितकूल ूǒवǒƴयाँ | ूसंग :-- आपका Ǒदनांक का अßयावेदन | "उपरोƠ ǒवषय मɅ िनदेशानुसार लेख है कȧ राÏय सरकार ने आपके आवेदन पर ूितवेदक/पुनरȣ¢ण के परामश[ से ǒवचार कर िलया है | ऐसा कोई कारण नहȣं है ǔजसके आधार पर समसंÉयक पऽ Ǒदनांक Ʈारा आपको सूिचत ूितकूल ूǒवǒƴया हटाई जा सके|” 12 21. It is relevant to note here that the respondent State had issued the Rajasthan Civil Services Annual Performance Appraisal Instructions, 1976 and the purpose of the said instructions was to make an objective assessment of the performance of an employee. Further, the adverse entries in the Annual Performance Appraisal, including the substance of the entire report, as also what had been said in praise of the Government Servant, should be communicated to him. The reporting/ reviewing officer may again consider the adverse entry in the light of the representation made and may either take action to expunge the entry, modify it or concur with the adverse entry. It has also been given in the Instructions of 1976 that a decision in this respect on the representation should be taken immediately and the Annual Performance Appraisal forwarded to the next higher authority. Likewise, other instructions have been laid down that if the reporting/ reviewing officer, on consideration of the representation, sustains an adverse entry, he should intimate this to the employee and advise him to make further representation, if any, through the reviewing officer, to the Special Secretary to Government, DOP, where the employee belongs to the State Service and to the HOD concerned, where the employee belongs to a service other than State Service within 15 days after the employee has been appraised of the decision of the reporting officer. A perusal of the order dated 05.06.1991 only shows that the representation of the petitioner was considered and there was no reason to expunge the adverse 13 entries recorded in the memorandum dated 29.11.1990. 22. This view has been laid down by the Apex Court in the case of Un ion of I n dia vs. E.G. Nam budir i, ( 19 91 ) 3 SCC 3 8 , wherein it has been held as under: - “The question then arises whether in considering the representation against adverse report, the authorities are duty bound to record reasons, or to communicate the same to the person concerned. Ordinarily, courts and tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons.” 23. It is also pertinent to note here that in the instant case, the reviewing authority i.e. The Directorate of the Rajasthan Technical Education, Rajasthan, Jaipur had recommended that since petitioner had submitted the representation alongwith the medical certificate, the adverse remark may be expunged (Annexure-RR/ 1). Therefore, I am of the considered opinion that the adverse remark communicated on 29.11.1990 and the order dated 05.06.1991 rejecting the 14 representation of the petitioner, deserves to be set aside. 24. Coming to the question of promotion of the petitioner on the post of Senior Lecturer as against the vacancies of the years 1995-96 is concerned, the said question also deserves to be decided in favour of the petitioner. As noted above, the adverse remark communicated to the petitioner and rejection of his representation made against it, is not sustainable and the disciplinary action taken against him under Rule 17 of the C.C.A. Rules, in respect of willful absence, had also been quashed and set aside by the High Court by the orders dated 29.09.2001 and 03.12.2001. It is worthwhile to note here that the respondents themselves, had during the pendency of the writ petition, given promotion to the petitioner on the post of Senior Lecturer vide order dated 18.09.2002 but from the vacancies of the year 1997-98. 25. The persons who were not only similarly situated but also junior to the petitioner had already been given the promotion from the year 1995-96. The petitioner deserves equal treatment. The failure on the part of the respondents not to give promotion to the petitioner from the same year as his juniors were given, would definitely amounts to discrimination and infringement of his rights under Article 14 of the Constitution of India. It would not be out of place to mention here that the respondents had also acted arbitrarily and in an unreasonable manner by not taking action against those persons who were 15 also deputed to attend the training programme at T.T.T.I., Chandigarh but they had not done so. Whereas the petitioner had not only been punished but action one after the other i.e. withholding his salary for the relevant period; not confirming alongwith his juniors and not giving promotion to the petitioner alongwith similarly situated persons. Such actions on the part of the respondents were certainly arbitrary and illegal. 26. For the reasons mentioned hereinabove, I am of the considered view that the writ petition succeeds and it is hereby allowed with the following order/ directions: - (i) The impugned orders dated 29.11.1990 (Annexure-6) and 05.06.1991 (Annexure-8) are quashed and set aside; (ii) The respondents are directed to promote the petitioner on the post of Senior Lecturer against the vacancy of the years 1995-96 and (iii) Accordingly, the petitioner shall be entitled for all consequential benefits. 26. In the facts and circumstances of the case, there shall be no order as to costs. ( RAGHUVENDRA S. RATHORE) ,J. t ik am / - Jr.P.A. s. no. s-2