1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.413/2002. Mr. Andre Po, Major, Resident of Cortalim-Goa .. Petitioner. Versus. 1. State of Goa, Through its Chief Secretary, Secretariat, Panaji Goa 2. The Collector, South Goa District, Collectorate Building, Margao, Salcete-Goa. 3. The Mamlatdar, Salcete Block, Margao, Salcete,Goa 4. The Chief Secretary, Secretariat, Panaji, Goa. .. respondents Mrs. A. Agni, Advocate for the Petitioner. Mr. G. Shirodkar, Addl. Govt. Advocate for the respondents. Coram :- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date : - 8 th August, 2008. ORAL JUDGMENT : ( PER S. C. DHARMADHIKARI, J) 1. The petitioner is aggrieved by the fact that the Time Bound Promotional Scale was not awarded to him with effect from 1.6.1989 but with effect from 1.6.1995. 2 2. The petitioner was appointed in the year 1968 and was initially posted at the Secretariat, Panaji, Goa. Subsequently, he was posted as Talathi in the year 1971. He has retired from service after attaining age of superannuation. He retired after 35 years of service with effect from 30.6.2003. 3. The petitioner came to be appointed as Talathi in the year 1971 and at the relevant time was posted at the office of Mamlatdar at Mormugao. He was also transferred as Talathi to various places and in the writ petition, the petitioner has referred to a case of missing files of mutation register in the year 1991 for which a memo was issued to him. 4. However, it is common ground before us that these proceedings are not relevant for the purposes of considering this claim to the Time Bound Promotional Scales with effect from 1.6.1989. 5. The petitioner does not dispute that in the year 1989, the Government of Goa brought a scheme named Time Bound Promotional Scale (T.B.P.S.) for the Government employees. He was working as a Talathi from the year 1971 and he completed 12 years' of service as Talathi in the year 1983. The scheme for T.B.P.S. stipulates that upon completion of 12 years' regular service, the incumbent shall be entitled to a promotional scale. The case of the petitioner is that the T.B.P.S. 3 ought to have been awarded to him with effect from 1.6.1989. The petitioner, however, has been awarded the same with effect from 1.6.1995. It is his grievance that all Talathis who are similarly situated, have been awarded the scales with effect from 1.6.1989. The other incumbents who were posted as Junior Stenographers, Upper Division Clerks, have been granted this scale immediately upon completion of 12 years' service. Reliance is placed by the petitioner on a letter dated 30.8.2000. 6. However, in paragraph 13 of the petition, the petitioner himself states that he has been denied the benefit of T.B.P.S. with effect from 1.6.1989 on account of adverse remarks. He contends in paragraph 13 that though the appeal for expunging of the said remarks, is pending before Chief Secretary Goa and that is how, a legal notice dated 10.12.2002 came to be issued and no action having been taken, he approached this Court. 7. Now, it is stated before us that adverse remarks which are referred to paragraph 13 pertain to the year 1991-1992 and they were not made basis of denying T.B.P.S. Our attention is also drawn to the fact that subsequently, pending representations have been disposed of. 8. We are not concerned with this aspect of the matter 4 inasmuch as an affidavit in reply has been filed on behalf of the respondents and the Collector of South Goa has affirmed it in paragraphs 3 & 4 of the same, it is stated thus : “ 3. By representation dated 13.10.1992 addressed to the Collector South Goa the undersigned had clarified that there is no negligence on his part in keeping the land records. As far as register in Form IX of village Sancoale the inquiry was dropped by letter dated 6.1.1994. As far as 9 other mutation cases the same were handed over to Shri Kapileshwari ex-Talathi of Velsao village however the matter pertaining to 9 mutation cases cannot form basis of adverse remarks contained in memo dated 19th August 1992 as memos were issued to on 21.9.92 pertaining to the said mutation cases.” 4. The appellant further submits that no memo was given to him about the alleged negligence in keeping the land records during the period from 1.4.1991 to 31.2.1992 and as the inquiry about Form No.IX mutation register has been dropped the same cannot form the basis for adverse remarks in the Confidential Role of the appellant. In the memo at page 4 the appellant has clarified that mutation register Form No.IX had been handed over to the Circle Inspector D.B.Joshi and concerned Aval Karkun was also having charge of the said register. This register was thereafter located in the old records of the Mamlatdar's Office by Mr. S. A. Dessai and Mr. Shetye (Peon) at the Office of Mamlatdar at Mormugao. The appellant had nothing to do with the misplacement of the said records.” 5 9. The petitioner's case is that if these remarks and proceedings in pursuance thereof are not the basis for denying him T.B.P.S. w.e.f. 1.6.89, then, reasons regarding the same are not disclosed at all. The denial is thus arbitrary, unfair and unreasonable is the grievance. The adverse remarks from 1st April, 1988 to 31st March, 1989, copies of which are annexed to the reply state that Reviewing Officer has observed that the petitioner is very slow in disposing of cases of mutation and requires constant supervision. He is not yet fit for promotion is also the remark. The remarks of the Reviewing Officer are dated 25.7.89 and Mamlatdar of Mormogao has written Confidential Report of the petitioner (Reporting Officer) on 15.6.89. The adverse remarks at pages 50A to B are the basis of the denial is the stand of the respondents. The denial is recorded in the minutes of the DPC held on 23rd February, 1994. 10. It is for the first time in the affidavit in rejoinder that the petitioner states that he became aware that T.B.P.S. was denied to him on account of these adverse remarks. The adverse remarks for the year 1988-1989 have been made the basis, is something which the petitioner has stated to have come to his knowledge after the reply affidavit is filed. That apart, the petitioner contends that the benefit has been granted with effect from 1.6.1995. The Departmental Promotion Committee according to the petitioner, met in the year 2000 and granted 6 him benefit with effect from 1.6.1995. At the same time, the petitioner refers to the minutes of the meeting of the Departmental Promotion Committee of 1994 and states that he was not recommended for grant of T.B.P.S. with effect from 1.6.1989. The Departmental Promotion Committee found him not fit for grant of these benefits with effect from 1.6.1989. Thus, in the petition, the petitioner has maintained complete silence about these remarks. 11. When the attention of the petitioner is invited by the respondents to the order dated 15.11.1989, which shows maintaining of adverse remarks, the petitioner states in rejoinder affidavit that the communication dated 15.11.1989 was never received by him. At the same time, it is urged that the order dated 15.11.1989 reveals that his representation was not considered by the authorities. The order dated 15.11.1989 states that after careful consideration, the adverse remarks were given in the ACR for the period from 1.4.88 to 31.3.1989 and in view of the fact that the official reported upon, has failed to submit his representation within the prescribed time limit, that the adverse remark is maintained. 12. The petitioner, then, contends that on 1.9.1989 he had forwarded a representation against those adverse remarks to the Collector of South Goa through proper channel, but this representation 7 has not been considered and it is now contended before us that the authority erroneously mentioned in the order dated 15.11.1989 that no representation was filed by the petitioner nor any appeal against adverse remark was made. 13. Mrs. Agni, learned Counsel for the petitioner urged that apart from the above, adverse remarks would themselves indicate that the Reporting and Reviewing Officers have not found anything objectionable with regard to petitioner's integrity and character. They have certified him to be efficient and honest. All that the Reporting Officer observes and that too within a short period of the petitioner reporting to him, that the petitioner has been slow in disposing of the mutation cases. She submits that mutation cases are something which are not to be disposed of by the petitioner, but it is the subordinates who failed in submitting relevant details. These are not cases for disposal as have been termed by the Reporting Authority. In any event, respondents have found that these remarks have no substance and T.B.P.S. benefit has been given later on, would mean that the remarks have not been assigned the same degree of seriousness. Hence, it cannot be held that the petitioner is not entitled to the benefit of the scheme with effect from 1.6.1989 and that too on par with other Government servants. The action is thus violative of the mandate of equality enshrined in Article 14 of the Constitution of India. 8 14. She placed reliance upon decision of Supreme Court in the case of Gurudial SingFijji, Versus State of Punjab reported in AIR 1979, SC 1622 and Brij Mohan Singh Chopra Versus State of Punjab reported in AIR 1987 SC 948. 15. On the other hand, Mr. Shirodkar, learned Additional Government Advocate invited our attention to the affidavit in reply and submits that the petitioner is aware of the adverse remarks. He is aware of the reasons that have been assigned for not granting benefit with effect from 1.6.1989. He does not dispute the adverse remarks and that in 2003 he feigns ignorance of an order dated 15.11.1989. All this would show that the petitioner was not entitled to the benefit as he was not found fit for the same in the relevant years. 16. We have perused the petition and annexures thereto so also, the affidavit in reply and rejoinder. We are of the opinion that the petitioner was aware of the adverse remarks. He was aware of the remarks of the Reporting and Reviewing Officers. He made no attempts to improve himself thereafter and that is how the remarks have been maintained. It is futile to urge that the representation dated 1.9.1989 was duly forwarded through proper channel and received in the office of the appropriate authorities and it is completely brushed aside. Such a 9 plea is neither raised in the petition nor any document is annexed to demonstrate the receipt of the representation. We have referred to paragraph 13 of the petition only to impress upon the petitioner that he was aware of the said remarks and at the first instance should have disclosed the same before the Court. He could have very well urged in the petition itself that the remarks were incorrect and a representation was made against the same. He could have averred that it was not considered and yet an order was passed on 15.11.1989 confirming and maintaining the adverse remarks. In such circumstances, the petitioner could have urged that denial of the benefit with effect from 1.6.1989 on the basis of remarks against which the Representation/ Appeal is pending violates the mandate of Article 14 and 16 of Constitution of India. The petitioner pleads nothing of this kind. 17. That apart, the petitioner's submission is that the remarks were not adverse and that the Reviewing Authority could not have arrived at the conclusion, within a short span of time, that the petitioner is slow in his work. These are matters which are best left to the authorities. Unless it is demonstrated that the remarks have been entered with some ulterior motive or deliberately so as to deny the petitioner promotional and other benefit and necessary particulars have been disclosed in that behalf, it is not for this Court to substitute its view with that of the authorities. The authorities have observed the work of the 10 petitioner and in the course of supervision and monitoring noted that the petitioner is not expeditiously disposing of mutation cases. The petitioner does not dispute that if such is the nature of the remarks and he is not fit for the promotion, T.B.P. Scales are also admissible to him. In this view of the matter, we are of the opinion that there is no infirmity disclosed in the action of the respondents in denying the petitioner the T.B.P.S. with effect from 1.6.1989. The adverse remarks have been maintained as is clear from the order dated 15.11.1989. If indeed, the petitioner's Appeal was forwarded and is pending, the petitioner could have placed said fact on record in the petition itself. What is annexed to the Rejoinder Affidavit is a copy of the representation dated 1.9.1989 with no particulars and proof of its dispatch and receipt. In these circumstances, no fault can be found in the action of the respondents in granting T.B.P.S. benefit with effect from 1.6.1995. 18. The reliance on decisions of the Supreme Court is clearly misplaced. In the case of Gurdial Singh Fijji , the Supreme Court noted the factual position and in paragraph 4 it is observed that the appellant before the Supreme Court was promoted to the selection grade with effect from 15.01.1972. He had earlier joined the Punjab Civil Services (Executive Branch) in 1953 and was appointed as an Executive Magistrate on June 8, 1954 and thereafter respondent Nos.8 to 15 were also selected and appointed to the service of the P.C.S.. Subsequently, 11 the appellant has also been promoted. That the services of the appellant along respondent Nos. 8 to 16, were allocated to the State of Punjab and in the year 1966-67 an adverse entry was made in the confidential record while the appellant is working under Shri Sewa Singh, District and Sessions Judge, Amritsar. That entry was communicated to the appellant against which he made representation, but, that was not disposed of for one reason and the other. Shri Sewa Singh did not express his view on the representation of the appellant and nothing further was done in the matter and whether the adverse entries were justified or not, was the issue in the context of these facts. Subsequently, the appellant was found to be an efficient worker inasmuch as he was getting good report and permitted to cross efficiency bar and earned promotion. The representation of the appellant before the Supreme Court with regard to the selection grade appointment was rejected by an order dated 20.6.1973. Subsequently, the matter went to the Punjab and Haryana High Court in the facts particularly set out in paragraph 5 of the Supreme Court decision. In paragraphs 6 & 7, the facts with regard to the facts of the Writ Petition and Letters Patent Appeal are set out. The appellant before the Supreme Court was not issued integrity certificate and was not included in the select list of Indian Administrative Services. The issue of the adverse remarks arose in this context and the peculiar factual position. The observations made by the Supreme Court in Gurudial Singh's case 12 must be seen in this backdrop. 19. Such is not the factual position before us. Nothing has been demonstrated by the petitioner before us which would bring his case on par with Gurudial Singh Fijji. 20. Similar is the case with regard to the decision in Brij Mohan Singh Chopra's case. In Brij Mohan Singh Chopra's case, his writ petition was dismissed by the Punjab and Haryana High Court. The appellant had been retired from the service prematurely by the Punjab Government vide its order dated 19.3.1980 and the argument was that the decision was arbitrary and unreasonable and his service record is all throughout good and there was no material before the appropriate authority on the basis of which the premature retirement could be justified on the ground that such retirement was necessary in public interest. The remarks were not disputed but consistent good record for past 5 years was put before the Supreme Court. The competent authority, however, relied upon the adverse entries of some remote past was the submission and that is how the Supreme Court made the observations relied upon. 21. As far as reliance on Gurudial Singh Fijji in this case, paragraph 9 of the decision in Brij Mohan Singh Chopra's case is clear. 13 The adverse entries which were only 2 in numbers were considered and against them the representation was pending. The representation having not been disposed of, that observations in Gurudial Singh Fijji's case were followed and that ruling applied in Brij Mohan Singh Chopra's case. On facts, such is not the position before us and therefore no assistance can be derived from the observations from the Brij Mohan Singh's case. That apart, the decision in Brij Mohan Singh's case was overruled by the Hon'ble Supreme Court in Baikunth N Das Versus Chief District Medical Officer, Baripada and Anr. reported in (1992) 2 SCC 299. The Principles to be applied in such cases have been summarised in Badrinath Versus State of Tamil Nadu reported in (2000)8 SCC 395. 22. For the reasons that are stated above and finding that T.B.P.S. benefits have been rightly granted to the petitioner with effect from 1.6.1995 and the action in this behalf not violating the mandate of Article 14 and 16 of Constitution of India that we are proceed to dismiss the petition. Rule is, accordingly, discharged with no order as to costs. S. C. DHARMADHIKARI, J R. C. CHAVAN, J SMA 14