Allahabad High Court
State Of U.P. Thru. Prin. Secy. Deptt. ... vs Govind Ram Verma on 5 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 2336
Author: Shabihul Hasnain
Bench: Shabihul Hasnain, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserve Judgment Court No. - 2 Case :- SERVICE BENCH No. - 30359 of 2017 Petitioner :- State Of U.P. Thru. Prin. Secy. Deptt. Home. & Others, Govt. Respondent :- Govind Ram Verma Counsel for Petitioner :- Standing Counsel Hon'ble Shabihul Hasnain,J.
Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard learned Additional Chief Standing Counsel for the petitioners.
2. The state of UP has preferred the present writ petition challenging the judgment and order dated 11/05/2015 passed by the UP Public Service Tribunal, Lucknow (hereinafter referred to as "the Tribunal"), whereby the Claim Petition No. 3 to 9 of 2013 preferred by the opposite party against the adverse "Annual Confidential Report" (hereinafter referred to as "ACR") for the year 2010-11 and the order dated 05/06/2012 passed by the petitioner no. 2 rejecting the representation against the said adverse annual convention remark had been set aside, and the claim petition has been allowed.
3. The facts in brief are that the opposite party while working on the post of Deputy Jailer was transferred from District Jail, Unnao to Central Jail, Varanasi on 06/09/2010. Against the aforesaid order of transfer the opposite party preferred a writ petition before the High Court being Writ Petition No. 6562 (SS) of 2010 which was disposed of on 15/09/2010 with the direction to decide representation and till disposal of the representation no coercive action shall be taken against the opposite party for not joining at Central Jail, Varanasi. In compliance of the aforesaid judgment, the petition no. 2 by means of order dated 12/10/2010 rejected the representation of the opposite party.
4. Subsequently the opposite party joined at Central Jail, Varanasi on 15/10/2010, and thereafter proceeded for duty by taking joining time from 26/10/2010 till 31/10/2010. He was required to report for duty on 01/11/2010 but on 02/11/2010 he sent a telegram which was received on 03/11/2010 mentioning about his ailment and seeking leave for the said period.
5. For the aforesaid act of the opposite party, the Reporting Officer made following report :
Þ,d vU;Ur ykyph vdeZ.M] vfo'oluh;] fu;eksa dh tkudkjh u j[kus okys] mRlkg'kwU;] >wBh f'kdk;r djus okys] tkfrokn j[kus okys] vius nkf;Roksa ds izfr mnklhu] ykijokg] dk;Z essa th pqjkus okys] foHkkx ij cks> Lo:i mi dkjkiky gSaA screening ds ik= gSaA ,sls vf/kdkjh gh foHkkx dh Nfo /kwfey djrs gSaAß
6. The Accepting Authority amended the aforesaid version of the Reporting Officer in the following terms :
Þizfrosnu vf/kdkjh }kjk miyC/k djk, lk{;ksaz ds vk/kkj ij muds }kjk vafdr eUrO;ksa ls vkaf'kd :i ls lgerA miyc/k lk{;ksa ds vk/kkj ij dkfeZd ds ykyph] vfo'oluh;] mRlkg'kwU;] >wBh f'kdk;r djus okys tkfroknh gksus lEcU/kh iqf"V ugha gksrh gSA vfHkys[kh; lk{;ksa ds vk/kkj ij dkfeZd ds nkf;Roksa ds izfr mnklhu] ykijokgh rFkk fu;eksa dh tkudkjh u j[kus lEcU/kh eUrO; ls lgerAß
7. Against the aforesaid adverse report opposite party preferred representation before petitioner no. 2, which was rejected on 05/06/2012 by Inspector General of Police (Jail Administration and Reform), and thereafter he preferred a claim petition before the Tribunal challenging the award of ACR as well as rejection of his representation.
8. By means of the impugned judgement of the Tribunal the claim petition of the respondent has been allowed on the ground that the respondent had worked under the initiating officer who gave the Annual Confidential Remark for the year 2010-11 for less than 3 months and therefore, is clearly in contravention with the provisions contained in the Government Order dated 30/10/1986. The Tribunal has also held that the fact that the representation against the aforesaid ACR was rejected without even considering the grounds raised by the respondent, and therefore the rejection order was bad in law, having been passed in the most arbitrary manner without any application of mind.
9. The Tribunal has also recorded the fact that by means of order dated 31/12/2013 the petitioner has been promoted to the post of "Karapal", and this fact has not been denied by the petitioners and therefore the ACR, for the year 2010 - 11, has lost its effect.
10. The judgment dated 11/05/2015, passed by the Tribunal has been challenged mainly on the ground that the Government Order dated 30/10/1986 has been misinterpreted by the Tribunal and the period of 3 months is only advisory in nature and not mandatory. Secondly, in case the employee discharges duties for less than a period of 3 months then such period will not include medical leave or any leave for personal work and if employee remains on training from place of posting, then such period of absence would not be excluded from the period of 3 months.
11. We have heard the learned Standing Counsel appearing on behalf of the petitioners and perused the record.
12. The Inspector General of Police (Jail Administration and Reforms Services) by means of order dated 05/06/2012 has rejected the representation of the respondent in most casual manner without even recording or considering the grounds raised by the respondent in the said representation. Such rejection, without even considering the grounds raised in the representation, is clearly violative of the principles of natural Justice and fairness. The purpose of reconsideration of any adverse order by a superior authority is to examine the legality as well as infraction of any prescribed procedural error, and the superior authority is under a mandate to consider the grounds raised by the aggrieved employee. The Tribunal has rightly set aside the order dated 05/06/2012, on the ground that the same has been passed in the most mechanical manner without considering any of the grounds raised by the respondent.
13. In the facts of the present case, it is evident that the respondent was promoted on the post of 'Karapal' by means of the order dated 31/12/2013, which clearly indicates that the adverse ACR given to him for the year 2010 -11, has lost iis efficacy and has become redundant, inasmuch as petitioners themselves have considered the entire record of the respondent at the time of granting him promotion. Even if, we were to interpret the Government Order dated 30/10/1986, in the manner and as argued by the petitioner, it would not in any manner, have any effect on the service of the respondent, and to that extent the issue raised by the petitioner is purely academic in nature. 14. Apart from the above, the petitioners could not raise any argument to defend the order dated 05/06/2012, whereby the representation of the respondent was rejected without considering the reasons stated by him in the said representation, and we are satisfied that the said rejection was clearly arbitrary and violative of principles of natural Justice.
15. We would also like to observe, with great pain and anguish, with regard to the delay in filing of the present writ petition. The order of the Tribunal dated 11/05/2015 has been challenged in the present writ petition which was filed in December 2017, that is to say, after a delay of nearly 2 ½ years. The petitioners in paragraphs 12 to 21 of the writ petition have tried to explain the delay in filing of the petition. They have stated that the legal opinion was provided by the learned Chief Standing Counsel on 15/05/2015, and thereafter the Law Department granted permission for filing the writ petition on 08/02/2017. There is no explanation about the delay from 15/05/2015 to 08/02/2017, and therefore, the petitioners were granted time to file an application for condonation of delay on 15/12/2017, again on 05/01/2018 and also on 30/01/2018, and the matter was adjourned on their request on 21/02/2018 and 05/03/2018, finally on 16/04/2018 an application for condonation of delay along with an affidavit was filed.
16. A perusal of the affidavit filed in support of the delay condonation application, would indicate that it is no better than the explanation given in the body of the writ petition. There is no explanation forthcoming for the delay occurring after the opinion of the learned Chief Standing Counsel was given on 15/05/2015 and the requests made to the Chief Standing Counsel by the Department for filing of the petition on 08/02/2017. The only fact which has been added in the affidavit is that on 09/09/2015, the permission for filing writ petition was granted by the Law Department. No reason what so ever has been offered for the delay from 09/09/2015 to 08/02/2017.
17. The principles of limitation, delay and latches in filing of writ petition apply equally to the private citizen as well as the Government. The State Government is at liberty to challenge the orders of the Tribunal in case it is of the opinion that the same is in contravention of any Act or Rule or in case there is any perversity of finding of fact or on any other grounds which are legally tenable. Such a writ petition has to be filed at the earliest because the Tribunal in its judgment would have given an opinion affecting the rights of the Government employees, which the petitioners are duty bound to implement. The petitioners, at the first instance, should accept the verdict of the Tribunal and implement the same in letter and spirit, unless there is a major lacuna in the interpretation of any law or is contrary to any settled principles of law enunciated by the High Court or the Supreme Court. Our sentiments are fully reflected in the judgment of the Hon'ble Supreme Court in the case of Dilbagh Rai Jarry v. Union of India, (1974) 3 SCC 554, the relevant portion of which reads as under :
V.R. Krishna Iyer, J. (concurring)-- The judgment just delivered has my full concurrence but I feel impelled to make a few observations not on the merits but on governmental disposition to litigation, the present case being symptomatic of a serious deficiency. In this country the State is the largest litigant to-day and the huge expenditure involved makes a big draft on the public exchequer. In the context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, has led the Railway callously and cantankerously to resist an action by its own employee, a small man, by urging a mere technical plea which has been pursued right up to the summit Court here and has been negatived in the judgment just pronounced. Instances of this type are legion as is evidenced by the fact that the Law Commission of India in a recent report [ Law Commission of India, 54th Report -- Civil Procedure Code] on amendments to the Civil Procedure Code has suggested the deletion of Section 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party. It is not right for a welfare State like ours to be Janus-faced and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like. That the tendency is chronic flows from certain observations I had made in a Kerala High Court decision [P.P. Abubacker v. Union of India, AIR 1972 Ker 103, 107 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723] which I may usefully excerpt here:
"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy."
18. The facts of the present case clearly indicate that filing of the present writ petition was an exercise in futility and could have been avoided had the competent authority cared to look into the entire facts, specially that after recording adverse ACR for the year 2010-11. The respondent was granted promotion to the next higher rank in 2013, and the validity or otherwise of the adverse ACR became a nonissue, and the interpretation of the Government Order of 1986 could have been raised and decided in any other matter where such an interpretation could have been of any consequence.
19. We are constrained to make these observations as we are repeatedly observing that the State Government is recklessly filing petitions challenging the judgment of the Tribunal after great delay. In all such matters where the Tribunal has granted some benefits which the employees are legally entitled to like salary, increment or promotion etc, and such judgments are not complied with for a great length of time, and to avoid contempt proceedings, writ petitions are filed challenging the orders of the Tribunal. Such practices should be discouraged by the State Government who should act as a model employer and implement the principles enshrined in the preamble of the Constitution to the fullest.
20. We are of the considered view that the issue raised by the petitioners in the present writ petition is merely academic, in light of the fact, that the respondent has already been promoted and the adverse ACR granted to him for the year 2010-11 has lost its effect by efflux of time.
21. The writ petition lacks merit and is accordingly dismissed.
22. Copy of this judgment be placed before the Chief Secretary, Government of U.P., Lucknow as well as the Legal Remembrancer (LR) for information and necessary action.
Order Date :- 05.02.2019 A. Verma