Allowed

Krishan Kumar Sharma v. State and Ors.

Rajasthan HC16 Mar 2021CW/611/2000

Case brief

AI extract

What is this about?

This writ petition challenged adverse remarks in the petitioner's Annual Confidential Report for 1997-98. The High Court expunged the remarks primarily due to jurisdictional flaws in their review process as per 1984 rules. On merits, it held the mistake causing the remark was not deliberate and no loss was caused, ordering the release of consequential benefits.

What did the court decide?

The adverse remarks for 1997-98 are expunged. The petitioner is entitled to the third selection scale, arrears, and 9% annual interest if payment is delayed beyond three months.

Krishan Kumar Sharma Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No.611/2000

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Krishan Kumar Sharma, aged about 48 years, son of Shri Kalyan Dutt Sharma, resident of 2-560 Jawahar Nagar, Jaipur.

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----Petitioner

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Versus

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The State of Rajasthan through the Director, Treasury & Accounts, Government of Rajasthan, Jaipur

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----Respondent For Petitioner(s) : Mr. Sandeep Saxena For Respondent(s) : Mr. Vaibhav Thakuria for Dr. Ganesh Parihar, AAG

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment

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16/03/2021(ORAL)

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This is a writ petition preferred by the petitioner whereby he assails the adverse remark and prays to quash and set aside the adverse remark communicated to him for the year 1997-98 vide letter dated 14.10.1999 and prays that the respondents be directed to give all consequential benefits including selection scale and further consider the case of the petitioner for promotion on the post of Accountant.

¶11

Learned counsel for the petitioner submits that during the pendency of this writ petition, the petitioner has already attained superannuation. However, on account of the adverse remarks, the petitioner was denied third selection scale which has resulted in reduction of his pension. Learned counsel submits that adverse remarks were communicated with regard to the year 1997-98. During the relevant period, the petitioner was posted as a Junior

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(2 of 9)

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[CW-611/2000]

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Accountant in Social Welfare Department and the Deputy Director of Social Welfare Department has entered adverse remarks against which he submitted a representation and the representation was considered by the Director, Social Welfare Department and the review has been done by Joint Director, Social Welfare Department and it has been communicated to him by the Director, Treasury and Accounts. It is submitted that the Instructions of 1976 for drawing of Annual Performance Appraisal Reports were amended and sub-para 7(3) of the memorandum dated 07.03.1984 was substituted vide memorandum dated 05.10.1984 and it was laid down as under:-

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“7(3) A.P.A.Rs of A.A.O./ Accountant/ Junior Accountants will be written by Chief Accounts Officer / Senior Accounts Officer of their office/ department for review and onwards transmission to the Director, Treasury and Accounts, Rajasthan through the Head of Department concerned.”

¶16

In view of above, learned counsel submits that APAR of the petitioner should have been written by the Head of the Office alone who would send the same to the Chief Accounts Officer, Senior Accounts Officer of their Office/Department for review and further onwards transmission to the Director, Treasury and Accounts. Thus, he submits that the adverse remarks entered in APAR of the petitioner be quashed as they were entered by an incompetent authority.

¶17

On merits relating to the adverse comments in the ACR, it is stated that the petitioner was overloaded with work during the period and the sanction of two units instead of one to the Anand

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(3 of 9)

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[CW-611/2000]

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Bal Grih was by mistake. As soon as the same was realized a letter was sent to the Anand Bal Grih and the amount was recovered. For a mistake which occurred on account of heavy workload, the petitioner could not be said to be having committed the mistake deliberately. More so, as the amount has been recovered, there was no occasion to treat such action as an adverse and was insufficient for making an adverse remark in the ACR of the petitioner.

¶21

Learned counsel submits that the entry on the question of integrity of the petitioner on the basis of such facts was wholly unwarranted. Learned counsel submits that he had filed a detailed representation against the said adverse remark vide his letter dated 09.04.1999 but the same has been rejected without application of mind and he was communicated vide letter dated 14.10.1999 in a single line that the adverse remarks have been decided to be kept as it is in his dossier.

¶22

Learned counsel submits that the order is laconic and nonspeaking order. Learned counsel relies in the case of Dr. Priya Soloman (Mrs.) v. State of Rajasthan, (Rajasthan) : 2017(4) WLC 246 and Jaipur Vidyut Vitran Nigam v. Sher Singh Meena : 2019(2) WLC (Raj.)(UC) 454 , in support of his submissions. Learned counsel also relies on U.P. Jal Nigam v. Prabhat Chandra Jain : 1996(2) SCC 363 to contend that the petitioner has had a very good ACR of the previous year and before making adverse remark in his subsequent ACR, he should have been given an opportunity of hearing. Downgrading of ACR from very good to adverse was wholly unjustified.

¶23

Per contra, learned counsel appearing for the respondents submit that the petitioner was working in the Social Welfare

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(4 of 9)

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[CW-611/2000]

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Department and his immediate superior authority was the Deputy Director, Social Welfare who would know the work being done by the petitioner as a Junior Accountant and would, therefore, be empowered to write the ACR of the petitioner. Learned counsel submits that the circulars issued by the State Government could not take away the basic feature of the Instructions of 1976 which requires the superior Officer to write an ACR by his subordinate of that particular department. Learned counsel submits that the facts mentioned in the adverse remarks have been admitted by the petitioner and therefore, they are required to be retained.

¶27

I have considered the submissions. 9. The contention of learned counsel for the petitioner regarding the Deputy Director having no competence to write the APAR on account of substitution of Para 7(3) is found to be having no basis. Admittedly, earlier the APARs of the Assistant Accounts Officer/ Accounts/ Junior Accounts were being written by there respective superior officers under whom they were working. However, once the State has vide departmental memorandum dated 05.10.1984 substituted Para 7(3), the same shall hold the field after 05.10.1984. Mere perusal of Para 7(3), it is apparent that the APAR is to be written by the respective Head of the Office. For a Junior Accountant, the Head of Office would be the Deputy Director of that Department and therefore, the adverse remarks entered by the Deputy Director of Social Welfare Department as Head of Office for a Junior Accountant cannot be said to be without competency. The contention raised by the counsel for the petitioner is found without force.

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This Court also finds that such an objection has not been raised by the petitioner while making his representation against

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(5 of 9)

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[CW-611/2000]

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the adverse remarks. It is only at the stage of filing of writ petition that such an objection has been raised.

¶32

Be that as it may, the further contention of the petitioner that the adverse remarks having been reviewed by the Joint Director of Social Welfare Department who was incompetent is found to be acceptable. As per the substituted Para 7(3), after 1984 the review of the remarks entered by the Head of the Office is to be done by the Chief Accounts Officer/ Senior Accounts Officer of the said Office. In the present case, the review has been done by the Joint Director, Social Welfare Officer who is not Chief Accounts Officer/ Senior Accounts Officer was incompetent. The same would be held to vitiate the decision making process. The adverse remarks, made by the Deputy Director was required to be examined by one of the two Officers as mentioned in the substituted Para 7(3). To that extent, the adverse entry made for the year 1997-98 is found to be vitiated.

¶33

On merits, this Court finds that the communication dated 27.03.1999 mentions about the facts regarding having released two units to Anand Bal Grih instead of one unit and not having answered to the show cause notice are written in Column 2(kha) where the written advice is required to be recorded. In the subsequent noting in the Column 4 relating to assessment of integrity, the said remark has been mentioned with a comment without conducting a survey and examining the work of Anand Bal Grih society who had already sanctioned one unit, two units were sanctioned which were later on recovered and, therefore, there has been a carelessness on the part of the petitioner. Such a remark in the opinion of this Court only states facts and also gives opinion of the Head of the Office of the petitioner having shown

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(6 of 9)

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[CW-611/2000]

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carelessness towards his duty. Such a remark would not in any manner be understood to mean that the integrity of the petitioner was doubtful. In the opinion of this Court, these aspects were required to be considered by the concerned authority while examining the representation of the petitioner.

¶37

From the perusal of the communication rejecting the representation of the petitioner, this Court finds that no reasons have come forward. In the case Union of India & Ors. versus E.G. Nambudiri : (1991) 3 SCC 38, the supreme Court has held as under:-

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“8. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given

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(7 of 9)

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[CW-611/2000]

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for decisions. See: Regina v. Gaming Board for Great Britain, ex p. Benaim and Khaida. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated.”

¶42

Thus, reasons are required to be recorded for rejecting a representation even if they are not communicated. Since adverse remarks entered in the ACR entail civil consequences, the minimum requirement is that the reasons must be recorded on the same basis. The Supreme Court in U.P. Jal Nigam v. Prabhat

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Chandra Jain (supra) has held as under:-

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“All that is required by the Authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, remaining secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty

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(8 of 9)

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[CW-611/2000]

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in accepting the ultimate result arrived at by the High Court.”

¶48

This Court finds that there was an illegality committed in recording adverse remarks. The petitioner’s remarks for the year 1997-98 as after the remarks having been marked by the Deputy Director, the same should have been sent to the Chief Accounts Officer/ Senior Accounts Officer of their Office/Department which has not been done. The adverse remarks therefore, stand vitiated and are liable to be expunged.

¶49

Since much time has gone by instead of sending the matter back, this Court has also examined the case on merits as above. On merits also, this Court is satisfied that the adverse remark cannot be allowed to be sustained as the alleged act is a singular one whereupon realising the mistake, the amount was recovered. No loss having been caused nor there are any allegation of giving any additional benefit illegally or motivated to any person. There was no occasion to have entered such a remark which results in causing loss of future benefits to the concerned employee. The representation was also not decided by recording any reasons. Even the reply does not show that reasons were recorded. In view of the law as above, the adverse remarks entered in the ACR of the petitioner for the year 1997-98 are expunged. The petitioner would be entitled to consequential benefits.

¶50

It is informed that the petitioner was denied selection scale on completion of 27 years of service. As this Court has expunged the adverse remarks for the year 1997-98, the State authorities are now directed to revise the pay fixation of the petitioner, accord him the benefit of third selection scale on completion of 27 years

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(9 of 9)

¶52

[CW-611/2000]

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of service and calculate the arrears and release the same within a

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period of three months henceforth.

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If the said amount is not released within the said period, the petitioner would be entitled to additional interest @9% per annum from the day the petitioner was required to be paid the same. Such interests shall be recovered from the concerned authority who has delayed in complying with the Court’s order.

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In view of the above, the writ petition is allowed. No costs.

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All pending applications shall also stand disposed of.

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(SANJEEV PRAKASH SHARMA),J

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SAURABH YADAV /670/5

Krishan Kumar Sharma v. State and Ors.

Case brief

What is this about?

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Krishan Kumar Sharma v. State and Ors.

Case brief

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