Allowed

Yogesh Saxena Son of Late Shri Dinesh Chand v. Jaipur Vidyut Vitaran Nigam Limited

Rajasthan HC30 May 2023CW/4826/2021

Case brief

AI extract

What is this about?

The Court allowed the writ petition, holding that the non-communication of a 'Good' entry in the petitioner's Annual Performance Appraisal Report violated Article 14 and natural justice. Directing the respondents to conduct a review DPC and promote the petitioner with seniority and benefits.

What did the court decide?

Directing respondents to convene review DPC and promote petitioner to Assistant Administrative Officer with all consequential benefits, maintaining seniority and treating uncommunicated 'Good' entry a

Yogesh Saxena Son of Late Shri Dinesh Chand Vs… — Service and Employment | Rajasthan HC (2023)

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[2023/RJJP/012536]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 4826/2021

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Yogesh Saxena Son Of Late Shri Dinesh Chand, Aged About 55 Years, Resident Of Plot No. 2-Tha-9, Housing Board, Shastri Nagar, Jaipur- 302016.

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----Petitioner

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Versus

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Jaipur Vidyut Vitaran Nigam Limited, Through Its Managing Director, Vidyut Bhawan, Janapath, Jyoti Nagar, Jaipur.

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The Secretary(Administration), Jaipur Vidyut Vitaran Nigam Limited, Vidyut Bhawan, Janapath, Jyoti Nagar, Jaipur.

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The Chief Personnel Officer, Jaipur Vidyut Vitran Nigam Ltd. Bidhyut Bhawan, Janpath, Jyoti Nagar, Jaipur.

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----Respondents

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For Petitioner(s)	: Mr.	Ayush Singh for
	Mr.	Punit Singhvi
For Respondent(s)	: Mr.	Rahish Kumar

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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30/05/2023

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Learned counsel for the petitioner submits that the controversy involved in this petition has already been decided by the Co-ordinate Bench of this Court in the case of Abhimanyu Singh Nathawal Vs. JVVNL and Anr.: S.B. Civil Writ Petition No. 20693/2018. Counsel submits that instant petition be disposed of in the light of the same directions.

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Learned counsel for the respondents opposed the arguments raised by learned counsel for the petitioner but he is not in a position to controvert the factual aspect of the matter with regard

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to the adjudication of the controversy in the case of Abhinayu Singh Nathawat (Supra).

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Heard and considered the submissions made at Bar and perused the material available on record.

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Since the controversy involved in this petition has already been decided by the Co-ordinate Bench of this Court in the case of Abhimanyu Singh Nathawat (Supra) with the following directions in para Nos. 6 to 10 which reads as under:

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It is undisputed that the petitioner was never informed about the entry of ‘Good’ in the APAR for the year of 2013-14. On the subject of non-communication of entries in the APARs/ACRs, the Apex Court in the case of Dev Dutt (supra) has observed and held as under:

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“9. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved.

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10. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion . Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a `good' entry is of no satisfaction to the incumbent

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if it in fact makes him ineligible for promotion or has an adverse effect on his chances.

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11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the noncommunication of the 'good' entry was arbitrary and hence illegal.

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19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (supra) that arbitrariness violates Article 14 of the Constitution .

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20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor,

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fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.

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45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution .”

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The Apex Court in the case of Abhijit Ghosh (supra) held as under:

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“Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, noncommunication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all

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granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.

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Learned Counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules.”

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Further, in the case of Sukhdev Singh (supra) , the Apex Court observed and held as under:

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“8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same, Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more

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conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good

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- must be communicated to him/her within

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a reasonable period .”

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As per the dictum of above quoted judgments, the present petition ought to be allowed on the sole ground that the entry of ‘Good’ in the APARs for the year of 2013-2014 was not communicated to the petitioner.

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The second line of argument advanced by the learned counsel for the petitioner, that petitioner had six Outstanding/Very Good entries in the preceding seven APARs need not be looked into as the petitioner is already held entitled to the relief claimed by him.

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In the result, the present petition is allowed. The respondents are directed to convene review DPC and promote the petitioner on the post of Assistant Administrative Officer against the vacancy of 2018-2019 with all consequential benefits from the date junior person to the petitioner was promoted, by treating the uncommunicated entry of ‘Good’ as ‘Very Good’ / ‘Outstanding’, if the petitioner is otherwise found fit for promotion as per rules. It is further directed that the seniority of the petitioner be maintained.

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Consequently, the writ petition is allowed in above terms. Pending applications, if any, stands disposed of.”

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5. Instant petition stands disposed of with similar directions issued by this Court in the case of Abhimanyu Singh Nathawat (Supra).

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Stay application and all pending application(s), if any, also stand disposed of.

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(ANOOP KUMAR DHAND),J

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Ashu/201

Yogesh Saxena Son of Late Shri Dinesh Chand v. Jaipur Vidyut Vitaran Nigam Limited

Case brief

What is this about?

What did the court decide?

Yogesh Saxena Son of Late Shri Dinesh Chand v. Jaipur Vidyut Vitaran Nigam Limited

Case brief

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What did the court decide?

What the court decided

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