Gujarat High Court
Dineshkumar Chhaganlal Carpenter vs Gujarat State Electricity Corpn Ltd & on 4 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8992/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8992 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
==========================================================
DINESHKUMAR CHHAGANLAL CARPENTER, SAFETY
OFFICER....Petitioner(s)
Versus
GUJARAT STATE ELECTRICITY CORPN LTD & 1....Respondent(s)
==========================================================
Appearance:
MR DS VASAVADA, ADVOCATE for the Petitioner(s) No. 1
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/08/2016
ORAL JUDGMENT
Page 1 of 14
HC-NIC Page 1 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT 1 By this writ applicant under Article 226 of the Constitution of India, the writ applicant, serving with the Gujarat State Electric Corporation Limited, has prayed for the following reliefs:
"22(A) To please allow this petition with cost, by issuing a writ of mandamus or any other appropriate writ to the respondents under Article 226 of the Constitution of India;
(B) To please hold that the action of the respondents in denying the benefits of higher grade to the petitioner w.e.f. 1st October, 1997 and granting the same w.e.f. 112002 i.e. five years late, is illegal, arbitrary, against the G.S.O. No.253;
(C) To please quash and set aside the order passed by the respondents No.2 authority of the respondents dated 26th July 2002 which is Ann.L as it is illegal, arbitrary and violative of Article 14 of the Constitution of India;
(D) To please direct the respondents to grant benefit of higher grade to the petitioner w.e.f. 11097 and the difference and the arrears may be directed to be aid with 18% interest as the authorities of the respondents are solely responsible for the arbitrary withholding the benefits of higher grade;
(E) Pending hearing and final disposal of the present petition, respondents may be directed to pay amount of interest at the rate of 12% on the arrears forthwith;
(F) To please grant such other and further relief(s) as are deemed fit in the interest of justice;"
2 The facts of this case may be summarized as under:
2.1 The writ applicant joined the services of the Corporation with effect from 14th August 1986 as a Safety Officer.
2.2 On 10th September 1986, the pay scale of the Safety Officer was revised. On 4th October 1988, the writ applicant successfully completed the training and was issued the certificate by the Technical Examination Board, State of Gujarat. In the certificate, it has been stated that the writ applicant had passed the training examination with First Class.Page 2 of 14
HC-NIC Page 2 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT 2.3 Since the writ applicant was not granted the benefit of the revised pay scale in the year 1996, he had to prefer a writ application being the Special Civil Application No.2711 of 1995, which came to be disposed of by this Court in view of the consensus arrived at between the parties. In accordance with the consent terms which were reduced into writing, the writ applicant's pay scale was revised to Rs.3200 - 5500/.
2.4 On 12th July 1996, the writ applicant was issued with an order revising the pay scale.
2.5 On 6th October 1997, the writ applicant submitted the option form in response to the G.S.O. 253 as he completed nine years of service in one scale on 1st October 1997. On 3rd December 1997, the writ applicant preferred a representation as regards his claim for the higher pay scale. It appears that on 12th June 1989, he was communicated the adverse remarks which were entered in his Confidential Report for the year 1988.
2.6 It also appears that the writ applicant had preferred appeal in that regard which was ordered to be dismissed.
2.7 On 8th June 2001, one last representation was preferred by the writ applicant for the grant of the higher grade with effect from 1st October 1997.
2.8 The respondent Board granted the higher grade to the writ applicant vide order dated 28th March 2002 with effect from 1st October 1997.
2.9 Being dissatisfied, the writ applicant preferred the Special Civil Application No.4632 of 2002 which was disposed in the following terms:
Page 3 of 14HC-NIC Page 3 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT "Heard learned advocate Mr. D.S. Vasavada for the petitioner. It is the case of the petitioner that two adverse remarks were communicated to the petitioner, one is dated 12th June, 1989 and the second is dated 8th June, 1995. Against both the adverse remarks, appeal has been filed by the petitioner before the Chief Engineer, GEB TPS, one is dated 24th July, 1989 and the second is dated 15th June, 1995. Learned advocate Mr. Vasavada has submitted that the petitioner has not been given benefit of nine years scale from the date on which the petitioner has completed nine years of service in one scale and in one cadre. The petitioner is entitled for the benefit of nine year with effect from 1st October, 1997 but has been given such benefit from 1.1.2001 instead of giving such benefit from 1.10.1997 and the Board is not deciding the appeals of the petitioner in the same subject matter.
Therefore, in such situation, it is directed to the respondent Board to decide the appeal filed by the petitioner dated 24th July, 1989 and 15th July, 1995 after giving reasonable opportunity of hearing to the petitioner and to pass appropriate order in accordance with law within two months from the date of receipt of copy of this order and to communicate such order to the petitioner.
With these observations and directions, this petition is disposed of without observing anything on merits and with a liberty in favour of the petitioner to challenge the orders that may be made by the respondent Board on the appeals of the petitioner before the appropriate forum in accordance with law if such orders are adverse to the petitioner."
2.10 Since the appellate authority dismissed the appeal, the writ applicant has preferred the present writ application.
3 Mr. Vasavda, the learned counsel appearing for the writ applicant vehemently submitted that the decision of the Board to grant the higher grade scale with effect from 1st January 2001, instead of 1st October 1997, is erroneous and contrary to the settled position of law. He submits that the uncommunicated adverse remarks for the years 1991, 1992 and 1993 could not have been taken into consideration by the authority concerned for the purpose of denying the higher pay scale with effect from 1st October 1997. He further pointed out that the authority concerned also considered the adverse remarks for the year 1994. The Page 4 of 14 HC-NIC Page 4 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT said remarks were communicated to the writ applicant. The same are as under:
"1994 remarks He is suitable for present post but he cannot shoulder responsibility of higher post as he is mild in nature and cannot work efficiently. He is found lacking in confidence for taking immediately effective decision."
4 According to Mr. Vasavda, the remarks of the year 1994 could be termed as absolute vague and by no stretch of imagination, could be termed as adverse. In such circumstances, according to Mr. Vasavda, there being merit in this writ application, the same may be allowed and the Corporation be directed to grant the higher grade scale with effect from 1st October 1996.
5 On the other hand, this writ application has been vehemently opposed by Ms. Desai, the learned advocate appearing for the Corporation. According to Ms. Desai, it is true that the adverse remarks of the years 1991, 1992 and 1993 were not communicated to the writ applicant and only the adverse remarks for the year 1994 were communicated. According to her, even the uncommunicated adverse remarks could have been taken into consideration by the authority in fixing a particular date for the grant of the higher grade scale. Ms. Desai has placed reliance on the following averments made in the affidavitin reply, as according to her, the entire procedure has been explained in the reply:
"4.1 I state that petitioner is working as Safety Officer and is an Engineer. Engineers are granted higher grade as per GSO 253 (Annexure D to the petition) which was issued on the basis of settlement entered by erstwhile Board with GEB Engineers Association, which represented the Engineers. As would be clear from the terms of said GSO, the decision is confined to grant of pay in the higher scale considering the overall performance of the engineer but without change of designation or posting Page 5 of 14 HC-NIC Page 5 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT which will be personal to the engineer concerned. Such engineer would continue to perform the same functions and duties and carry the same designation till he is absorbed against the regular vacancy. However, in the instant case of petitioner, there is no further channel of promotion but is still eligible for next higher scale. The Nine Year Rule does not provide for promotion to the higher post but higher scale is granted if such an Engineer is otherwise fit for promotion on the basis of overall performance in the existing post. Thus, it is very much essential for the engineer claiming higher grade to possess clear service record to become eligible for higher grade of the next scale / post.
4.2 As would be seen from the terms and conditions of GSO - 253, the benefit of higher grade is not conferred on the engineer moment he completes nine years in the scale. I say that some misinterpretation prevailed regarding grant of higher grade and hence to resolve the issue a settlement was entered on 7/3/80 between erstwhile Board and DETA Association representing Engineers. In pursuance to the said settlement Est. Circular 312 dt.30/4/80 was issued by which the procedure and principle of Higher Grade to Engineers were enumerated and the same is annexed herewith Anneuxre1.
In this circular and as agreed in the settlement, it was decided that if an senior employee due to same fortuitous causes like (a) delay in relief
(b) distance of new station and new posting (c) leave taken at the time etc., takes charge of the news posting / post at a later date than his junior, then the senior employee shall be considered for absorption on the basis of his interse seniority in the lower cadre. In this circular it was specifically mentioned that the fortuitous benefit of grant of nine year Rule from an earlier date to a junior employee as per seniority list would be ignored "provided that the postponement of nine years benefit to the senior person not being a deliberate decision of the competent authority".
I state that the deliberate decision of the competent authority can be due to the reasons mentioned at clause (iii) of the GSO or about cases in which punishment are awarded (Boards approach and practice in case of punishment submitted in SCA 1974/84 which were confirmed).
4.3 I further state that another deliberate decision of deferring the higher grade is taken when the overall performance of an Engineer is not found to be fit even for promotion. The performance of an Engineer is gauged by the confidential reports being filled by respective superior of an Engineer. As laid down in GSO - 253, an Engineer is eligible for higher pay of the higher post only when he is fit in the present post and this has to be seen on the basis of overall performance of the claimant. Aggrieved by this, a group of Engineers had earlier filed SCA 530/81 before Hon'ble High Court of Gujarat and the matter was disposed of by order dt. 18/6/84. The order of the Hon'ble High Court dealt in depth the issues Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT relating to higher grade and it laid down certain principles which are to be followed by Board at the time of granting the nine year benefit. I crave leave to refer to and rely upon the said judgment. The gist/summary of the principles as approved by the Hon'ble High Court in the above matter is annexed herewith as Annexure 2.
xx xx xx
"6 With reference to para 11 and 12 it is correct to contend that the
adverse remarks are to be communicated within a specified time limit. Para 6 of Estt. Circular No.454 dated 23/8/85 (Annexure - H to the petition) deals with communication of adverse remarks and it states that the remarks are to be communicated within reasonable time. I further state that as per the principles derived in SCA 530/81, the adverse remarks not communicated within 3 years are to be considered as stale. I state that the adverse remarks appearing in the C.R. for the year 1988 have not been considered by the respondents for deciding his claim for grant of higher grade w.e.f. 1.10.97. The claim for said date has been raised because the petitioner was extended the benefit of revised existing scale for the post of Safety Officer w.e.f. 1/10/88 in terms of settlement in SCA 2711/95. I further state that after granting of the said revised pay scale w.e.f. 1/10/88, the petitioner having completed 9 years service has raised the claim for next higher grade w.e.f. 1/10/97. I further annex herewith the gist of Confidential Reports of the petitioner from 1987 to 2001 as Annexure 4. From the said gist it appears that there were consistent adverse remarks in the reports of 1988, 1989, 1990, 1991, 1992, 1993 and 1994. I further state that whereas the appeal preferred for the year 1988 was not decided, rest of the adverse remarks (except 1994) were not communicated to the petitioner. As regards adverse remarks for the year 1994, the same were communicated on 8/6/95 and appeal was preferred on 15/6/95.
Since the matter regarding deemed date higher grade was not decided by erstwhile Board, the petitioner had preferred SCA 4632/02 wherein by order dated 1/5/2002, directions were given to give reasonable opportunity of hearing and pass appropriate orders in accordance with law.
I state that pursuant to said order, the petitioner was given personal hearing on 9/7/2002 and speaking order dated 26/7/2002 came to be passed whereby it was decided not to expunge the adverse remarks for the year 1994 and the order granting higher grade w.e.f. 1/1/2002 was found in order."
"8 With reference to para 13, 14 and 15 of the petition and the contention that the adverse remarks of the year 1991, 92, and 93 were not communicated and that of the year 1994 were communicated Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT belatedly I state that, for the purpose of grant of higher grade the adverse remarks in the C.R. of 1991, 92, and 1993 were not considered but it is fact that the said adverse remarks justify the adverse remarks appearing in the year 1994. As regards delay in conveying adverse remarks I state that Estt. Circular No.454 dated 23/8/85 states to convey adverse remarks within reasonable time and accordingly they were communicated on 8/6/1995. However, as per the principle laid down in SCA 530/81, adverse remarks of 3 years prior to due date of consideration, if not communicated, are to be treated as stale and accordingly the adverse remarks appearing in CR of 1989 to 1994 were considered as stale. In the instant case the adverse remarks were communicated very much within reasonable time. I further state that there is no time frame to decide the appeals against adverse remarks and therefore the appeal dated 15/6/95 came to be decided on 26/7/2002 in view of order in SCA 4632/02.
9 With reference to para 16, 17 and 18 of the petition, I state that it is a fact that adverse remarks appearing in the CR for the year 1991, 92 and 1993 are not conveyed to the petitioner but it is also a fact that there is consistency in the nature of infirmities found by his superiors which indirectly justify the adverse remarks of 1994 which were conveyed to him. The adverse remarks of 1994 explicitly states that the petitioner who is a Safety Officer "is only suitable for the present post but cannot shoulder higher responsibility as he is mild in nature and cannot work efficiently. He is found lazzing (lagging) in confidence for taking immediately effective decisions" which being a Safety Officer are required to be taken. If the said A.R. Compared with those of 1991, 92 and 1993 all of them loudly speak in the same tone. Thus, the adverse remarks of 1994 were found to be proper by the authority and the appeal against it was rejected.
I further state that for promotion from the post of Executive Engineer (equivalent to Safety Officer) to the post of Superintending Engineer (for which higher grade is claimed) principles of meritcum seniority are applied and out of 7 CRs at least five CRs should contain more than 55% of marks and none of them should be adverse. Applying the said principle for the purpose of higher grade I state that looking to seven CRs ratings prior to 1997, the petitioner has earned 55% or more marks only in 4 confidential reports (including the CR of 1994 which is not traceable). Therefore, even otherwise, the petitioner is not eligible for higher grade from the date claimed.
I further state that even if adverse remarks for the year 1991, 92 and 93 are not considered, on the basis of his C.R. rating between 1995 to 2001, the competent authority has granted the benefit of higher grade w.e.f. 1/1/2002 which is consistent with the rules of higher grade / promotion.
As regards, the allegations of arbitrariness in issuing order dated Page 8 of 14 HC-NIC Page 8 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT 26/7/2002 I state that the authority was of the view that "of course, though no cognizance of said remarks (1991, 92 and 93) was taken for deferring the higher grade, similar adverse remarks regarding his capability to shoulder higher responsibility and effectiveness does justify the adverse remarks for the year 1994". Thus, it is the consistency of the nature of adverse remarks which is eloquent enough and which cannot be ignored and more specifically when they justify the adverse remarks of 1994.
xx xx xx As regards contentions regarding vagueness in the adverse remarks is concerned I state that Estt. Circular 454 dated 23/8/84 at clause 1 mentions that the C.R. forms are so designed to cover adequately the general aspects of work and conduct of a person, yet they may not, in some cases, fully meet the requirement of the reporting / reviewing and countersigning officers and as and when such a need is felt, the officers concerned may cover special points of consideration in general remarks column at the end of the report of the person concerned. I state that the adverse remarks are the special points of the petitioner. Further this rule abundantly show that a confidential report is intended to be a general assessment of work and such report are maintained for the purpose of serving as data of comparative merit when the question of promotion, confirmation, higher grade etc arises. Therefore, the contention that the adverse remarks did not contain specific instances and were vague are not acceptable because their consistency itself speaks about petitioners work conduct.
As regards the contention of the petitioner that before inserting adverse remarks in the confidential report he should have been warned in advance and prior sufficient opportunity should have been given. I state that the adverse remarks appearing in CR of 1988 were conveyed to him on 12/6/89. Though the said CR as also of the year 1989, 1990, 1991, 1992 and 1993 were not considered for the purpose of higher grade but the record clearly suggest that over the period of 7 years there was no marked suggest that over the period of 7 years there was no marked improvement in the petitioner. Thus, he was sufficiently informed in the year 1988 but only after 1995 some improvement came through in the petitioner work."
6 Thus, it appears from the stance of the Corporation that the criteria for the grant of higher grade is meritcumseniority. According to the policy and the regulations of the Corporation, out of seven Confidential Reports, at least five Confidential Reports should contain Page 9 of 14 HC-NIC Page 9 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT more than 55% of marks and none of those should be adverse. The writ applicant had earned 55% or more marks only in four Confidential Reports. In such circumstances, the authority did not deem fit to grant the higher grade scale with effect from 1st October 1997. In such circumstances referred to above, Ms. Desai prays that there being no merit in this writ application, the same be rejected.
7 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to claim the higher grade scale with effect from 1st October 1997.
8 It is well settled that every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period. Such proposition is legally sound and helps in achieving the threefold objectives. First, the communication of every entry in the A.C.R. to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Secondly and equally important, on being made aware of the entry in the A.C.R., the public servant may feel dissatisfied with the same. The communication of the entry enables him/her to make an appropriate representation for the upgradation of the remarks entered in the A.C.R. Thirdly, the communication of every entry in the A.C.R. brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. Every entry in the A.C.R., which are poor, fair, average, good or very good, must be communicated to him/her within a reasonable period. [See :
Sukhdev Singh v. Union of India, 2013 (137) FLR 907].
9 So far as the case in hand is concerned, as stated above, the case of the writ applicant was considered and having regard to the three Page 10 of 14 HC-NIC Page 10 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT adverse remarks of the three consequent years 1991, 1992 and 1993, the authority reached to a conclusion that the writ applicant should not be given the higher grade scale with effect from 1st October 1997, but should be given with effect from 1st January 2001.
10 I am not impressed by the principal argument of the learned counsel that the uncommunicated remarks could not have at all been considered. It is true that the adverse remarks passed against the writ applicant in the confidential reports ought to have been communicated to him. On the mere circumstances that it was not done so, it cannot be said that he was fit for promotion at the relevant point of time. It would have been desirable if the adverse remarks had been communicated from time to time to the writ applicant so that he could have rectified his mistake. The question for consideration is whether the case of the writ applicant was considered for the higher scale taking into consideration his Confidential Reports. The records would indicate that the authority considered the case of the writ applicant. If an authority has exercised its discretion in good faith and not in violation of any law, such exercise of discretion should not be interfered with merely on the ground that it could have been exercised differently. The Confidential Reports of the writ applicant revealed that the authority has exercised its discretion properly. On the mere ground that the adverse remarks found in the Confidential Reports were not communicated to the writ applicant, it cannot be said that there were no adverse remarks against him and the authority had exercised its discretion arbitrarily.
11 In my view, as the writ applicant's case was considered applying the policy which has been explained in the affidavitinreply, no violation of Article 16 can be complained of.
Page 11 of 14
HC-NIC Page 11 of 14 Created On Wed Aug 10 01:25:47 IST 2016
C/SCA/8992/2002 JUDGMENT
12 Amongst the wellknown attributes of public service, one that is
least subject to the exception is that no employee can claim as of right a promotion from one position to another unless he could do so under a statutory provision or an enforceable condition of service. A variety of considerations govern the promotion of an employee none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all the relevant considerations, such as seniority, competence, rectitude, and antecedent official records, none of which is less important than the other, for the preservation of purity and efficiency in the public service. The basic or governing consideration in all the promotions is what may be shortly described as the merit or suitability. Seniority is in substance one of the elements in the assessment of merit.
13 The Equality of opportunity under Article 16 of the Constitution can never be taken to exclude the idea of selection. It only requires that while making the selection, the State should apply same standards to all persons similarly situated with respect to the question on hand. The Equality of opportunity should not be confused with absolute equality and Article 16 does not prohibit the prescription of reasonable rules for selection. Even in regard to the promotional posts other than the selection posts the idea of selection is not ruled out. The seniority by itself can never confer an absolute right to promotion irrespective of other considerations.
14 At the cost of repetition, the writ applicant was not able to secure more than 55% of the marks in minimum five Confidential Reports out of seven Confidential Reports. He was able to secure 55% marks only in four Confidential Reports. The details have been provided by the Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Aug 10 01:25:47 IST 2016 C/SCA/8992/2002 JUDGMENT respondents which are as under:
Year Observation Remarks
1987 55 marks -
1988 51 marks in my opinion Safety Officer A.R. Communicated on
should be energetic, quick and smart 12/6/89. Status of appeal, enough to take decision and control. The if any, not known. same is not found in Shri Carpenter.
1989 52 marks. He has knowledge of safety but AR not communicated independently can not handle.
1990 50 marks. He is not fit for further AR not communicated.
promotion.
1991 52 marks. Looking to his working and AR not communicated.
capability, Shri Carpenter is not capable to shoulder the responsibility of higher post.
He is only suitable for present post and not for promotion to the post of Chief Safety Officer. He may be continued in present scale.
1992 59 marks. Shri Carpenter needs more AR not communicated.
experience in present post so that he can handle responsibility of higher post in future. At present he is not recommended for promotion to higher post.
1993 61 marks. Looking to the present working AR not communicated.
of Shri Carpenter, he is required to be continued in the same post for getting more experience before he is recommended for promotion to next higher post.
1994 He is suitable only for the present post but AR communicated on he cannot shoulder responsibility of higher 8/6/95. Appeal preferred on post as he is mild in nature and cannot 15/6/95 and in view of work efficiently. He is found lacking in order in SCA 4632/02 confidence for taking immediately effective appeal on adverse remarks decision. decided on 26/7/02.
1995 55 marks No AR
1996 57 marks No AR
1997 61 marks No AR
1998 63 marks No AR
1999 59 marks No AR
2000 66 marks No AR
2001 61 marks No AR
Page 13 of 14
HC-NIC Page 13 of 14 Created On Wed Aug 10 01:25:47 IST 2016
C/SCA/8992/2002 JUDGMENT
2002 Higher granted w.e.f. 1/1/2002 No AR
15 I am also not impressed by the submission of Mr. Vasavda that the
adverse remarks for the year 1994 are vague and could not be termed as adverse. The remarks speak for itself.
16 In the overall view of the matter, I hold that the writ applicant is not entitled to the relief he has prayed for. No illegality could be said to have been committed by the respondents, warranting any interference in exercise of my extraordinary jurisdiction under Article 226 of the Constitution of India.
17 As a result, this writ application fails and is hereby rejected. Rule is discharged.
(J.B.PARDIWALA, J.) chandresh Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Aug 10 01:25:47 IST 2016