1. The petitioner being aggrieved by order dated 11/01/2002 passed by the Secretary, Panchayat Rural Housing and Rural Development Department is before this Court challenging the same on the ground that the representation sent by the petitioner pursuant to an order passed by this Court, which was not decided for quite long and the petitioner constrained to approach this Court again, wherein, again direction was given, that the representation made on particular date, be decided but as the representation was not decided. The petitioner was constrained to file a contempt petition. Learned advocate for the petitioner could successfully demonstrate that order under challenge, is an arbitrary and it is written in slip-shod manner and it lacks application of mind on the part of the authority as it is without taking into consideration various Government Resolutions and Circulars, much less the various judgments of the Hon'ble Apex Court and this Court, which governed the field.
2. The case is having little chequered history, which is amply set out in Paragraph-2 of the petition. The same is reproduced for ready perusal.
“2.....The petitioner for period while he was working as a Dy. D.D.O. at Amreli had been communicated a remark between the period from 01/05/1996 to 13/08/1996 on 17/08/1998. Initially, this remark was directed to be treated as advisory, yet petitioner had made a representation dated 26/11/1998 requesting for expungment of the said entry. Thereafter, vide communication dated 24/05/1999, the petitioner had been informed that in supercession of the earlier order dated 17/08/1998, the entry which is communicated as advisory is being treated as adverse and he was directed, if he wishes so, to make a representation within 6 weeks. The petitioner vide letter dated 30/06/1999 had asked for 6 weeks extension but was only granted 3 weeks extension vide order dated 17/07/1999, again on 27/07/1999, the petitioner had requested for extension of 1 month time which request was rejected and by order dated 24/08/1999, the said entry communicated as adverse was confirmed. In the interregnum the petitioner had preferred SCA No.5037 of 1999 on 13/07/1999 challenging the communication whereby, advisory entry had been treated as adverse. By way of amendment the final order of confirming adverse entry had also been challenged. This Honourable Court while quashing the final order of confirming the adverse entry dated 24/08/1999 had directed the respondents to decide the representation by the present petitioner against the said entry in accordance with law and after giving him a fair opportunity of hearing and permitting him to file additional representation and affording personal hearing if the rules do not prohibit the same. The petitioner had preferred representation on 31/12/1999 and additional representation with enclosures on 24/04/2000 at the time of personal bearing, which representation had not been decided for a period of more than 16 months and therefore, the petitioner had preferred SCA No.3051/2001 in which petition, this Honourable Court directed the respondent no.2 to decide the representation on or before 30/06/2001. The petitioner submits that even after the said order of this Honourable High Court, as no decision had been taken on the representation, the petitioner had approached this Honourable High Court exercising jurisdiction under the Contempt of Courts Act vide MCA No.1762 of 2001 on 04/10/2001. In the said MCA for Contempt, this Honourable Court had directed the respondent authorities to decide the representation within a period of two months. Ultimately, vide order dated 11/01/2002, the petitioner has been communicated order passed by respondent no.2 whereby the representation of the petitioner is rejected and the adverse entry is confirmed in his Annual Confidential Report (ACR).”
2.1 From the aforesaid facts, it is clear that this is a case, wherein, the higher authorities have felt offended. It is also clear from the facts narrated that the whole chapter started from the incident wherein the ego appears to have been hurt. It will not be wrong to say so. The petitioner was communicated a remark about his 'working' for the period : from 01/05/1996 to 13/08/1996 on 17/08/1998. A copy of the communication is placed on record at Anneuxre-A. It is mentioned therein that, 'the communication is only with a view to enable the petitioner to improve the working'. It is also mentioned therein that it is not to be treated “adverse”. Besides, it is also mentioned in that communication that it is only with a view to see that the petitioner improves his working capability.
2.2 It appears that the petitioner was at a crucial stage of his career and therefore, being apprehensive of this remark disrupting his progress graph of the career, he filed a representation against the said remark with a request that this remark be expunged. This representation made by the petitioner ignited the whole controversy, which has landed the petitioner in Court for all these years starting from filing of first petition being SCA No.5037 of 1999, another petition being SCA No.3051 of 2001, Contempt Petition being MCA No.1762 of 2001 and the present petition.
2.3 On receipt of the representation dated 26/11/1998, the petitioner was served with an order dated 24/05/1999. By this order, it was told to the petitioner that now that remark, which was advisory in nature, is to be treated as 'adverse'. The petitioner who had represented against the remark, even when it was 'advisory' in nature and had requested to expunge the same, had no other alternative than to approach this Court by filing petition being SCA No.5037 of 1999. This Court while disposing of SCA No.5037 of 1999, observed in Paragraph-7 as under:-
“7. However, while considering the order dated 24th August, 1999, it is revealed that the entry has been confirmed solely on the ground that the petitioner has not submitted any representation in response to the letter dated 24/05/1999 and therefore, for want of any representation, the same has been confirmed. This order in my opinion “must be held in breach of principles of natural justice,” in the facts and circumstances of the present case, and cannot be sustained. As noticed above, the very foundation of the initiation of giving the notice dated 24/05/99 was “the representation of the petitioner dated 26th November 1998 requesting the respondents to expunge the said remarks”. The fact that the respondents taking the clue from the petitioner's representation became alive to their mistake and issued notice on 24/05/99 inviting objections, does not permit them to ignore pending representation which remains undisposed of on the spacious ground of not receiving any reply to the
letter dated 24/05/99 when such representation in fact was already with them. This clearly “reflects a closed mind with which the issue has been considered”. The order dated 24/08/99 cannot therefore be sustained for the simple reason that this has been made without application of mind to the material which was before the authorities. The fact that the authorities granted fresh opportunity to make the representation and the petitioner could have made a fresh representation does not make the representation already made by the petitioner as non-est, on which no decision can be taken on particularly when the very foundation of reviewing its communication dated 17/08/1998 was the representation of the petitioner and consideration by the authority, whether the same is to be considered or not in view of its earlier communication. Once it reacted to the representation dated 26/11/1998 in tune with petitioner's apprehensions, the same could not have been ignored while taking any decision. In that representation, the petitioner has also asked for personal hearing.” (emphasis supplied)
3. The petitioner, after the said order dated 15/09/1999, made representation on 31/12/1999 and also, an additional representation with enclosures on 24/04/2000, which were not decided by the authorities for long 16 months and therefore, the petitioner had preferred second petition being SCA No.3051/2001.
4. The extent of being offended can be noticed from the fact that despite the order of this Court in SCA No.5037 of 1999, the authorities did not decide the representation of the petitioner for long 16 months. That was not the end of the matter. When the petitioner approached this Court by preferring SCA No.3051 of 2001, the High Court reiterated its direction and asked the authorities to decide the representation on or before 30/06/2001. The authorities did not comply with the direction of the High Court and therefore, the petitioner was constrained to file contempt petition being MCA No.1762 of 2001 and it is thereafter, that the order impugned is passed on 11/01/2002.
5. Mere perusal of that order, will reveal that there cannot be more arbitrary, written in slip-shod manner order passed by respondent, who is an officer of the rank of 'Secretary to the Government'. The order is full of, 'ifs and buts'. The order is passed relying on the 'remarks', which itself is under challenge. It is really painful that the officer of the rank of 'Secretary to the Government' has wholly relied on the 'note' prepared by the subordinate staff.
5.1 The order under challenge records the basic facts in first paragraph. In the second paragraph, the order records the fact of filing of Special Civil Application No.5037 of 1999 and the order passed by this Court dated 15/09/1999, whereby, the petitioner was given an opportunity to file a representation. It is also recorded in the order that, 'the petitioner filed a representation on 31/12/1999 and the silent points of that representation'. The order then proceeds to record that, 'the Secretary of the Department [Panchayat Rural Housing and Rural Development] had heard the petitioner on 25/09/2000 and had kept the matter for further hearing on 07/01/2002. But the petitioner had stated that he does not want to make any further representation'.
5.2 The order then records about the Circular of General Administration Department dated 31/03/1989, according to which, whenever any adverse entry comes to the knowledge, the same is required to be intimated to the concerned Government servant. As a custodian of Confidential Report, the Revenue Department, had decided the entry is an 'adverse entry', and had intimated to the petitioner. The order then proceeds to consider the case of the petitioner and it is recorded that, 'on perusal of the adverse entry made in the confidential report of petitioner Mr. Trivedi (Though in the cause title of the petition, the name of the petitioner is written as “Mr.
B.B. Dwivedi”, in the order the name is written as “Mr. Trivedi”), it is found that the officer writing the confidential reports, has recorded that, “the officer [Petitioner] has not done the proper assessment of the employees working under him”. The order then records that, 'the reviewing authority has made a note about the aforesaid remarks saying that “the confidential reports [written by the petitioner] are not available for perusal”. Therefore, the reviewing officer has not given any remarks about the adverse entry'.
5.3 What follows is important. The officer proceeds to record in the next paragraph that “it is from the aforesaid details that the District Development Officer must have had an opportunity to appreciate [review] the confidential reports, written by Mr. Trivedi [Petitioner] and on such perusal, he must have reached to a conclusion that Mr. Trivedi has committed an error in doing proper assessment of the subordinate employees, and therefore, this Officer has reason to believe the same.
5.4 This paragraph makes it very clear that the officer, who has passed this order did not have actual material with him, viz. the confidential reports written by the petitioner of his subordinate employees not only that this officer has himself noted that, the reviewing officer of the confidential reports of the petitioner, did not have an occasion to see the confidential reports, written by the petitioner and therefore, he is not able to give any remarks against the adverse entry, made in the confidential reports of the petitioner. Despite that, the officer passing the order, assumes that the District Development Officer must have had an occasion to peruse the confidential reports, written by the present petitioner and therefore, he must have reached to the conclusion that the petitioner has committed an error in doing proper assessment of his subordinate staff.
5.5 The next paragraph of the order is that, at the relevant time on the basis of the confidential reports, written by the petitioner, the reviewing authority [The then District Development Officer] had come to a conclusion that in the assessment made by Mr. Trivedi of his subordinate staff, there was an error. Therefore, at this stage, there is no strong reason or basis or evidence to take a contrary decision. Therefore, the conclusion arrived at by the District Development Officer of the relevant time as a reporting officer, do not warrant any change.
5.6 The next paragraph of the order states that the ability to assess the work of the subordinate staff, is an important quality and exchange of such ability, is definitely an adverse entry and such entry cannot be treated as an advisory entry.
5.7 The order then proceeds to record that there is a delay in communicating the adverse entry, made in the confidential reports, but only on account of such administrative lapse, the validity of the adverse entry does not change.
5.8 The officer has then written the last paragraph saying that “in light of the aforesaid facts, as per the direction of the Hon'ble the High Court on representation of Mr. Trivedi [Petitioner], on careful and impartial consideration, I come to the conclusion that the representation of Mr. Trivedi is not acceptable and therefore, the adverse entry made in his confidential report dated 01/05/1996, is to be maintained”.
6. Thus, the whole order is on 'ifs and buts'. The officer of the rank of Secretary to the Government has passed the order impugned, cannot be sustained. The officer did not have -
(i) The confidential reports written by the petitioner.
(ii) Even 'Review Authority' (for the Confidential Report of the petitioner) did not have the benefit of seeing the confidential reports written by the petitioner. Despite that the Authority passing the impugned order, has written in the order that, “at the relevant time, the Reviewing Officer means the District Development Officer has come to the conclusion that the assessment made by Shri Trivedi (Petitioner) had deficiency. Then any contrary decision cannot be taken at this stage in absence of strong reasons – basis - evidence”
This is contrary to the earlier part of the order impugned.
(iii) The order is passed only to complete the formality.
(iv) There is no application of mind. Even if the authority wanted to apply mind, it could not have done so as required material was not available.
In view of the aforesaid discussion, the petition is allowed. Order dated 11/01/2002 is quashed and set aside. The authorities are directed to treat entry dated 17/08/1998 as non-est in the record of the petitioner and his case be considered for all purpose without that entry being there. Rule is made absolute. No order as to costs.
Direct service is permitted.
(RAVI R.TRIPATHI, J) aruna