RSA No.996 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.996 of 2009(O&M) Date of decision: 4.3.2009 State of Haryana and others ......Appellants Versus Urmil Yadav ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Deepak Jindal, AAG, Haryana. * * * Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent has been decreed by holding that adverse remarks recorded in the ACR of the plaintiff for the year 1995-96 which was communicated to her in the year 2003 are illegal, null and void and was expunged and the defendant- appellants were directed to release all consequential benefits including the 1st Annual Career Progression etc. which was not released on the basis of the aforesaid adverse remarks. As per the averments made in the plaint, the plaintiff- respondent was appointed as Staff Nurse in the Health Department, Haryana with effect from 1.2.1986 and her services were regularized on the said post on 31.12.1990. She was entitled to get 1st Assured Career Progression (hereinafter referred to as ACP) scale of pay w.e.f. 1.1.2001 for which she made a representation on 8.1.2002 to Senior Medical Officer, Primary Health Centre, Jakholi, Distt. Sonepat. It was canvassed that the plaintiff wrote many letters to the Department but no heed was paid and she filed CWP No.7415 of 2003 decided on 15.5.2003 and thereafter, RSA No.996 of 2009(O&M) 2 Director General, Health Services, Haryana communicated to her the adverse remarks of ACR for the year 1995-96 vide letter dated 28.5.2003. Simultaneously, Director General, Health Services, Haryana rejected her representation vide his order dated 2.9.2003 for grant of ACPs which was challenged by the plaintiff in CWP No.5522 dated 21.3.2004. The said CWP was disposed of by this Court vide order dated 2.8.2005 and the plaintiff was relegated to the Civil Court. It is the further case of the plaintiff-respondent that she had appealed against adverse remarks in her ACR for the year 1995-96 communicated to her vide order dated 28.5.2003 but the same were not replied by the Department. She also served a legal notice. It was further pleaded that no notice was ever served upon her during the year 1995-96 before giving adverse remarks in the ACR and the rules and instructions were ignored while initiating the ACR of the plaintiff for the year 1995-96. It was further pleaded that uncommunicated and adverse reports cannot be considered by withholding of benefits accrued to the employee and the action of recording of ACR for the year 1995-96 after a lapse of more than seven years and again of conveying the adverse remarks on the basis of said reports and the impugned order dated 2.9.2003 rejecting her claim for grant of 1st ACP on the plea that her ACR for the year 1995-96 was below average were illegal, null and void and liable to be set aside. The plaintiff requested the defendants to admit her claim, but of no avail. Hence, the suit. Upon notice, the defendants filed written statement by raising various preliminary objections. On merits, it was submitted that the Government of Haryana has framed rules known as Haryana Civil Services (Assured Carrier Progression) Rules, 1998 and as per these rules one of the conditions for grant of ACP scale to Class-III and Class- IV employees of Haryana Government is that one must have completed 10 RSA No.996 of 2009(O&M) 3 years regular satisfactory service. The plaintiff had not completed her 10 years regular satisfactory service so she was not entitled to the benefit of 1st ACP w.e.f. 1.1.2001 as her ACR for the year 1995-96 was not upto the mark. The adverse remarks were duly conveyed to her. This Court vide order dated 15.5.2003 directed the appellants to take a final decision on her representation and the Department vide order dated 2.9.2003, in compliance of the aforesaid directions, passed a speaking order. It was further stated that the adverse remarks were communicated to the plaintiff vide letter dated 28.5.2003 and the plaintiff had not replied the same within the stipulated period and thereafter, the speaking order dated 2.9.2003 was passed. It was further stated that the ACR of the plaintiff-respondent was written keeping in view her work and conduct. There were many complaints against her. It was, however, admitted that instructions and time schedule within the ACR was required to be written and further forwarded to the reviewing authority and accepting authorities was there. However, the plaintiff cannot take benefit of the same since the claim of the plaintiff was considered and rejected by the competent authority. It was pleaded that there was no merit in the suit and the same be dismissed. Separate written statement was filed by defendant No.4 taking various legal objections. The trial Court after appreciating the pleadings as well as evidence led on record and hearing learned counsel for the parties, decreed the suit of the plaintiff with costs vide judgment and decree dated 28.8.2008. Feeling aggrieved with the aforesaid findings recorded by the trial Court, defendants No.1 to 3 and defendant No.4 preferred two separate appeals which were dismissed by the Lower Appellate Court vide impugned judgment and decree dated 29.11.2008. RSA No.996 of 2009(O&M) 4 Still not satisfied, defendants No.1 to 3 have filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have erred in law while decreeing the suit of the plaintiff-respondent as recording of ACR or adverse remarks is a subjective satisfaction of the officer concerned and the Civil Court was not competent to scan the correctness of the said entries in the service record of the plaintiff-respondent and therefore, the following substantial questions of law arise in this appeal: “1. Whether the recording of ACR or adverse remarks is a subjective satisfaction of the officer concerned? 2. Whether the judgment and decree passed by the learned courts below are sustainable in the eyes of law?” I have heard learned counsel for the appellants. However, I find argument raised by the learned counsel for the appellants is misconceived. The Hon'ble Supreme Court of India in the case of State of Haryana v. P.C. Wadhwa, IPS Inspector General of Police and another (1987) 2 SCC 602 observed as under: “The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in term of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service carrier. The whole RSA No.996 of 2009(O&M) 5 objects of making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provision of rules 5, 6, 6-A and 7 are directory and not-mandatory, but that doesn't mean that the directory provision need not be complied with even substantial. Such provision may not be complied with strictly, and substantial compliance will be sufficient. But, where complies after an inordinate delay would be against spirit and object of the directory provision, such complies would not be substantial complies. In the instant case, while the provision of rules 5, 6, 6-A and 7 require that every thing including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these rules are directory, without serving any purpose, consistent with the spirit and objectives of these rules. We need not, however, dilate upon the question any more and considered whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent”. Thus, from the aforesaid authoritative judgment of the Apex RSA No.996 of 2009(O&M) 6 Court, it is well settled that an inordinate delay made in communicating the adverse remarks have not been approved by the Hon'ble Supreme Court. In the case of Ishwarlal J.Nayak v. Development Commissioner and Secretary, Education Department (1985) 1 Bombay CR 138, BU, it was held that since the representation of the petitioner in that case against the adverse remarks against him was not decided, the said adverse remarks could not be acted upon. Even otherwise, in the present case, the inordinate delay in writing of ACR of the plaintiff for the year 1995-96 has not been duly explained. Thus, in the facts and circumstances of the case, the adverse remarks recorded in the ACR of the plaintiff for the year 1995- 96 which was communicated after a lapse of more than seven years are liable to be ignored as the same could not be considered by DGHS in terms of order dated 2.9.2003 while dealing with the representation of the petitioner for grant of ACP. Thus, no fault can be found with the findings recorded by the Courts below. No substantial question of law arises. Dismissed. March 4, 2009 (RAKESH KUMAR GARG) ps JUDGE