(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. With the consent of the learned counsel for the parties, this appeal is taken up for final hearing at the admission stage. We have heard Mr Nikhil Kariel, learned counsel for the appellant and Mr Kamal Trivedi, learned Advocate General assisted by Ms. Sangita Vishen for respondent No.1. This Letters Patent Appeal has been filed challenging the order dated 30.10.2009 passed by the learned Single Judge in Special Civil Application No.11188 of 2009.
2. The facts of the case in brief are as under:
The appellant-original petitioner was working as Deputy Collector (Protocol), Surat District during the period from 1.4.2005 and 31.3.2006. Thereafter he was transferred and was working as Deputy District Election Officer, Rajkot. An order dated 25.2.2008 was served upon the appellant informing him that adverse remark is written in the Annual Confidential Report (for short, 'ACR') for the reported period i.e. 1.4.2005 to 31.3.2006 by the Reporting Officer. Without considering the representation made by the appellant, vide communication dated 15.10.2008 the adverse remarks issued by the Reporting Officer for the said period had been confirmed by the Government which was challenged by the appellant before the learned Single Judge. The learned Single Judge, by order dated 14.7.2008 disposed of Special Civil Application No.1520/2008. Para 4 of the said order is reproduced hereunder:
“4. In view of the above, no further order is required to be passed except observing that this court has not expressed any opinion on merits in favour of either parties and it is ultimately for the appropriate authority to pass an appropriate order of confirming the adverse remarks and/or otherwise after considering the report of the Reporting Officer as well as the representation of the petitioner in accordance with law on merits for which this court has not expressed any opinion on merits.”
Even after the aforesaid order, the appellant received communication dated 11.8.2009 from the respondent authorities confirming the adverse entry in the ACR for the aforesaid period. The appellant has challenged this communication by filing Special Civil Application No. 11188 of 2009 which was disposed of by learned Single Judge of this court by order dated 30.10.2009. This order is challenged in this appeal.
3. On a query put by the Court whether the ACR Form in question is on the record or not, learned AGP has produced xerox copy of the FORM-II related to Shri B.B. Dwivedi, the present appellant for which learned counsel for the appellant has declared that he has no objection if the same be taken on record. The same is ordered to be taken on record of this Appeal.
4. Learned counsel for the appellant has vehemently contended that it was required of the State Government to reconsider the issue on the material in view of the earlier order dated 14.7.2009 passed by this court in Special Civil Application No.1520 of 2009. He submitted that the action of calling for the additional remarks and consideration thereof by the State Government is in contravention to the order passed by this court. He submitted that when the Court gave direction to consider the case afresh in accordance with law, only the report of the Reporting Officer and the representation of the appellant were to be considered by the respondent authority. The learned counsel next contended that the procedure for writing of ACR is not followed strictly in this case. The remarks have been made beyond the period and therefore, the same is bad in law. However, the learned Single Judge has committed grave error in coming to the conclusion that the delay in writing the remarks beyond time table provided by the Government circulars was for unavoidable reasons. He further submitted that once the explanation of the appellant was accepted and the notice was withdrawn and that too as per the order dated 14.7.2009 of this court, the entries made in the ACR should not have been treated as 'adverse' entries. He further submitted that the purpose of writing an ACR is defeated when merely based on a solitary incident for which explanation given by the appellant had been found satisfactory by the Reporting Officer, remark of 'fair' in the column of taking initiative and shouldering responsibility should not have been made. He finally submitted that the whole process of making the remarks in the ACR and treating them as 'adverse' entries is in violation of various resolutions, particularly resolution dated 2.2.2005. He therefore, prays that the impugned order dated 30.10.2009 passed by the learned Single Judge in Special Civil Application No. 11188/2009 be set aside.
5. Learned AGP for the respondent submitted that the appellant has tried to interpret the Government Resolution (for short, “G.R.”) dated 2.2.2005 of General Administration Department (for short, “the GAD”) in particular the paragraph relied on by the appellant which refers to the Confidential Report and not to the “overall assessment column of the ACR”. This shows that the words such as 'fair', 'ordinary' 'tolerable' etc. used in any of the column are to be treated as adverse and to be communicated to the concerned officer. Such communication is necessary because if there is any assessment which ranks an officer is “less than Good”, it would have an adverse impact on the officer concerned at the time of his being assessed for promotion by the Departmental Promotion Committee. She submitted that the purpose of communicating an adverse remark is to see that the officer can make a representation and a decision could be taken as to whether or not to retain such remark. According to her, the remark 'satisfactory' is treated as adverse as it is considered equivalent to 'Fair', 'passable' etc. and is certainly “less than Good”. As such the remarks like 'fair', 'average', 'ordinary', 'tolerable' etc. would be treated as adverse. Thus, the Department, in conformity with the GR dated 2.2.2005 has communicated the remark 'fair' contained in column No.4 (i) of the ACR of the appellant for the period 1.4.2005 to 31.3.2006 and after following due procedure, retained the same. Drawing our attention to the details given in tabular form, learned AGP submitted that there is no delay on the part of the department as alleged but the appellant is at fault for not submitting the self-appraisal report before the scheduled time. She contended that the appellant being a responsible Class-I Officer is expected to prepare his self-appraisal report in time and in turn, submission thereof to the Reporting Officer for the needful in the process of ACR writing. She submitted that in view of the order dated 14.7.2009 passed by this court, the department decided to seek detailed reasoning/justification from the Reporting Authority. On receipt of the detailed reasoning given by the Reporting Authority, the matter was re- examined and keeping in view the relevant GRs on ACR writing and considering the representation made by the appellant, the appellant was communicated about the decision to retain the adverse remarks. She submitted that the appellant was in the habit of abstaining from duty without obtaining prior approval from the Reporting Authority for which notice was issued to the appellant with warning to ensure that he does not leave headquarter without obtaining prior approval from the Reporting Authority. In spite of this, the appellant acted in a manner unbecoming of a responsible Class-I officer of the rank of Deputy Collector. One occasion when he was entrusted with election duty in connection with Surat Municipal Corporation, he had submitted the leave application and proceeded on leave without ascertaining whether the leave was sanctioned. Thus, the Reporting Officer is fully justified in giving the remark 'fair' to the appellant in the said column No.4(i). She, therefore, prayed to dismiss the appeal.
6. Before dealing with the submissions made by the learned counsel for the parties, it is necessary to discuss the relevant G.R. which is in vernacular. English translation of G.R. No.khHl-102004-1166-K dated 2.2.2005 which was relied upon by the respective parties is extracted below:
“Resolution General instructions with regard to writing and scrutiny of the Annual Confidential Report of the Government Officers/Employees is published by the consolidated resolution dated 31.3.89 read as above by this department. The method for writing Confidential Report is prescribed in para 6 of this resolution in which it has been clarified that colourless expressions such as “Fair”. “Ordinary”, “Average”, “General”, “Tolerable”, etc. should not be used as grading, despite it, if any of the above expressions is used, it should not be treated as adverse remarks. However, positive merits are expected from Class-I Officers at this level and in their case, mere average level of performance while not being treated specifically as adverse would be required to be notified to him so as to enable them to strive and improve their abilities. Therefore, instructions have been issued that in case of Class-I Officers, if any of the four expressions as mentioned above are incorporated in Confidential Report, the same should be communicated to them. It is also clarified that the said remarks are not being treated as adverse, but they are being brought to the notice of the officer to enable him to do better.
2. The expressions which are quoted in abovesaid instructions do not describe the positive dimension or undoubted merits of concerned officers. On the contrary, it suggests imperfection in expected ability on the part of employees/officers. The interpretation of merits in standards of seniority-cum-merit is considered as positive merits showing ability in discharging higher responsibilities in public service. Therefore, it is necessary to be brought to the notice of the employees/officers acquiring grading such as “Fair”, “Ordinary”, “Average”, “General”, “Tolerable” to enable them to show better results. Hence, after careful consideration and by revoking instructions described in para 6 of resolution dated 31.3.89, the Government is now pleased to resolve as under:
(6) Procedure of writing Confidential Report” General assessment is required to be made on the basis of the opinion which is expressed by the Reporting Officer of the Confidential Report. Total four expressions such as 'Outstanding', 'Very Good', 'Good' and 'Unfit' have been prescribed in the circular dated 6.3.2004 of General Administration Department to represent the general assessment of grading and the instructions have been issued not to use the expressions other than these for grading. Hence, the expressions such as 'Fair', 'Ordinary', 'Average', 'Tolerable' etc. should not be used and if any officer/employee uses expressions for grading such as “Fair”, “Ordinary”, “Average”, “General”, “Tolerable” in Confidential Report, it should be explicitly treated as adverse remarks. The concerned officer/employee should be invariably communicated such remarks in stipulated time period and in the proforma prescribed in the circular dated 10.2.78 of the General Administration department, and even in the case of such adverse remarks, procedure under the prevalent instructions should be successively followed.
At the time of writing any of the columns of Confidential Report, if the Reporting Officer or Reviewing Officer uses unclear, ambiguous or colourless remarks other than above mentioned expressions and if his motive is to consider those remarks as adverse remarks, then that officer should write a note against specific column that the said remark should be treated as adverse remarks, however the decision of the Government, whether or not to consider the said remark as adverse remarks should be final.”
7. Referring to the above G.R. dated 2.2.2005, learned counsel for the appellant has strenuously submitted that since the adverse entry itself was not in consonance with the procedure prescribed in the said G.R. dated 2.2.2005, the same could not have been confirmed. He has submitted that as per the said G.R. dated 2.2.2005, if words like Fair”, “Ordinary”, “Average”, “General”, “Common”, “can be tolerated” etc. should not be written in the individual column of ACR forms. In case such terms are used, then the Reporting Officer should specifically indicate that such remark is to be treated as “adverse”. He has then submitted that in the case on hand, the Reporting Officer had used the word “Fair” against column No. 4.(i) which is meant for taking initiative, resourcefulness and willingness to assume responsibilities. As per the submissions of the learned counsel for the appellant in view of the G.R. dated 2.2.2005, the Reporting Officer was to specifically state as to whether he or she treated such entry as adverse or not. On the said aspect, while writing the word “Fair” against column No.4(i), the Reporting Officer had not mentioned anything against the said column but later on the accepting authority had, suo motu treated the said remark as “adverse” and had communicated the same to the appellant and had called for the remarks/representation. In short, the main submission of the learned counsel for the appellant is that unless the Reporting Officer at the relevant point of time, treats such a remark as “adverse” and specifically mentioned in ACR form recording the same against the relevant column, then only said remark is to be treated as “adverse” and even if that procedure is to be followed, the ultimate decision would be with the State Government to decide whether such entry is adverse or not.
7.1. Learned AGP has vehemently submitted that the provisions of the said G.R. dated 2.2.2005 on the subject of ACR writing have been scrupulously followed by the concerned Reporting Officer and the word “Fair” used in column No.4(i) of the ACR form in question has rightly been treated as Adverse considering the provisions of the G.R. dated 2.2.2005. It is further submitted that so far as the ambiguous words/categories viz. Fair”, “Ordinary”, “Average”, “General”, “Tolerable” as shown in the G.R. dated 2.2.2005 used in Para 2 of the said GR are concerned, they are not exhaustive but are illustrative and, therefore, it had been further clarified in the last portion of the said G.R. that at the time of writing any of the columns of the C.R., if the Reporting Officer or Reviewing Officer uses unclear, ambiguous or colourless remarks other than the above mentioned expressions, in that case if his motive is to consider those remarks as adverse remarks, then the officer should write a note against specific column that the said remark should be treated as adverse remarks or not for getting the clear motive of the concerned officer.
8. We have carefully perused the above referred G.R. issued by the GAD beariing No. No.khHl-102004-1166-K dated 2.2.2005. Bare reading of the same it is clear that the practice of using expressions such as Fair”, “Ordinary”, “Average”, “General”, “can be tolerated” etc. have been deprecated and it has been resolved that the officer should not use such expressions in the form while writing ACR for grading. It has also been resolved that if any officer/employee uses such expressions for grading as Fair”, “Ordinary”, “Average”, “General”, “can be tolerated” etc. in C.R., it should be explicitly treated as adverse remarks. Moreover, the duty cast upon the concerned officer/employee that he/she should be invariably communicated such remarks within the stipulated time/period and in the proforma prescribed in the G.R. No. KhHl-1177/1094-K dated 28th June, 1978 of the GAD. From the bare reading of G.R. dated 2.2.2005 referred above, we do not find any substance and merit in the submissions made by the learned counsel for the appellant that unless the Reporting Officer while writing makes such a remark against the relevant column then only said remark is to be treated as adverse. In the case on hand, the expression remark “Fair” had been against column No.4.(i) without mentioning anything against the said column whether it should be treated as adverse or not. Considering the clarity of the G.R. dated 2.2.2005 referred above, the said remark should be explicitly treated as adverse remarks and nothing is required to be written against the said column. As mentioned in the last portion of the above referred G.R. dated 2.2.2005, it is further clarified that at the time of writing any of the columns of the C.R., if the Reporting Officer or Reviewing Officer uses unclear, ambiguous or colourless remarks other than the above mentioned expressions and if his motive is to consider those remarks as adverse remarks, then the concerned officer should write a note against such specific column that the said remark should be treated as adverse remarks meaning thereby if any officer puts any other remarks other than the above expressions such as Fair”, “Ordinary”, “Average”, “General”, “can be tolerated” etc. in any column, then the concerned officer should write a note against that specific column whether the said remarks should be treated as adverse remarks or not. Thus, in our considered view, on this aspect, there appears no substance in the submissions referred above made by the learned counsel for the appellant.
9. Learned counsel for the appellant has further submitted that since there are no statutory rules which governs the process of filling up of the ACR form, principles of natural justice should be followed. In the present case, the reported period was between 1.4.2005 to 31.3.2006. The adverse entry has been communicated to the appellant vide order dated 25.2.2008. Learned counsel has then submitted that the Resolution dated 31.3.1989 which lays down time limit of completion of the process of ACR ought to have been strictly followed and since the same has not only not been followed but part-I to be filled up by office and then part-II, self appraisal form to be filled up by the appellant of FORM-II are blank and never placed them before the concerned office nor given to the appellant. However, the Reporting Officer and Reviewing Officer, without application of mind and with ulterior motive filled up part-III and Part IV respectively after a lapse of long period and the said action on their part is enough to come to the conclusion that as the concerned officers had proceeded further without any checking or without application of mind whether the part-I and part-II of FORM-II respectively has been filled up by the office or not and so as the remarks in the ACR has not been entered as per the time table, procedure and practice, the said action should be deprecated by allowing the present Appeal.
9.1. On the submission of learned counsel for the appellant that without any checking or without application of mind by the Reporting Officer and by Reviewing Officer whether the part-I and part-II of FORM-II respectively had been filled up by the office and by the concerned employee respectively or not and so as the remarks in the ACR has not been entered as per the time table, procedure and practice etc. is concerned, learned AGP has vehemently submitted that there is neither any delay nor it had been written without application of mind by the Reporting Officer and the Reviewing Officer as alleged by the appellant. She has argued that on the contrary the appellant is in fault for not submitting the self- appraisal report before the scheduled time and there was no lapse on the part of the concerned officials.In this connection the details given on the alleged delay in communication of the adverse remarks are reproduced below:
9.2. Learned AGP Ms. Sangita Vishen has further submitted that vide GR dated 31.3.1989 the appellant was required to fill up the self-appraisal part of the ACR and submit it to the Reporting Officer latest by 20.4.2006. However, the department found that the said self-appraisal for the period under reference was not available till 24.10.2007. Thereafter as per the practice followed by the department, a letter was sent to the Reporting Officer on 2.11.2007 to ascertain whether self- appraisal form of the appellant was received and if the self- appraisal form is received from the appellant then the Reporting Officer should report the ACR immediately and if the self-appraisal form duly filled up was not received then Reporting Officer should fill up the reporting part on Blank Form. She then submitted in the present case, the appellant did not fill up the self-appraisal part of the ACR for almost last 20 months even after expiry of the time limit and ultimately the GAD had to issue Blank Forms of the ACR to the Reporting Officer in November 2007. Thereafter the ACR was written by the Reporting Officer on 23.12.2007 and the Reviewing Officer reviewed the same on 19.2.2008. Thus the process of ACR writing could be completed only when the Government issued blank form to the Reporting Officer. Thereafter the appellant was communicated the adverse remark in question on 25.2.2008. She argued that the appellant being a responsible Class-I Officer is expected of preparing his self-appraisal report in time and in turn submission thereof to the Reporting Officer.
9.3. We have taken into consideration the rival submissions made by the learned counsel for the respective parties. We have perused the order passed in Special Civil Application No.11188 of 2009 which was disposed of by learned Single Judge of this court by order dated 30.10.2009. The learned Single Judge has observed in paras 8, 9 and 13 of the said order as under:
“8. The learned counsel for the petitioner next contended that as per the Government Circular the remarks in the Confidential Reports are required to be entered as per the time table and the same is required to be strictly followed. The remarks have been made beyond the period, therefore the same would be bad in law.
9. It deserves to be recorded that the Government Circulars providing the time table for writing remarks are to be read as directory and cannot operate as a bar if there is any delay in writing remarks due to unavoidable reason. Therefore, merely because there was some delay in writing remarks, the remarks cannot be said as barred nor would be vulnerable on the ground as sought to be canvassed.
10. ... ....
11. ... ....
12. ... ....
13. In any case even if the matter is to be considered on the ground as sought to be canvassed after taking into consideration the submission by the petitioner and the explanation of the Reporting Officer, it cannot be said that the State Government has committed error apparent on the face of record for confirming the remarks in the Confidential Reports of the petitioner.”
9.4. In light of the above referred submissions, we have perused xerox copy of the ACR form relating to the present appellant for the period from 1.4.2005 to 31.3.2006 produced by the learned AGP for the respondent. It is not under dispute that part-I of FORM-II is required to be filled up by the office. In the above referred ACR form related to the appellant, except column No.1 of the said Part-I, column Nos. 2 to 7 of Part-I are blank which are supposed to have been filled up by the office. In light of the above referred submissions, it is desirable to produce the relevant extract of column No.8 of the G.R. dated 31.8.1989 which is in vernacular, translated into English which reads as under:
“(8) Time Table to accomplish the process to write down the Confidential Report.
The time table for various procedures decided by the Government to accomplish the procedure to write down the Confidential Report as well as review thereof in time is as under:
The establishment branch of each section- department-office by filling the information of part one of specimen of report before 21st March of each year shall hand over the same to the officer writing the report to write down the report. If the officer writing the report is transferred, the form of report be sent to him. This overall process should be initiated from 1st March of each year accordingly,
(1) The establishment branch of all the offices, filling the details of part-I of report of Non-
Gazetted Officer shall have to hand over the same to the officer writing that report before 31st March of each year.
(2) For the purpose of writing the confidential report of Gazetted Officers, their forms for writing the self-appraisal be given before 31st of March each year. The forms of confidential reports of the officers of All India Service Cadre be handed over to the officer writing the report.
(3) ... ... ...
(4) The concerned Gazetted Officer filling up the said appraisal part 2, shall submit the same to the officer writing the report latest by 20th April. If the self-appraisal will not be produced to the officer writing it up to 20th April to fill up the same, then without waiting for the same, the officer writing the report, obtaining the form of report from the establishment branch, shall undertake the work to write down the report.
(5) The officer writing the report of the Gazetted Officers shall accomplish that work upto 30th April of each year. “ From the above it is clear that prior to 31st March of the relevant year, office should fill up form part-I of FORM-II of the concerned officers and the same should be handed over by the office to him/her along with the blank form of part-II who shall write part-II within the prescribed time as mentioned in the above referred G.R. dated 31.8.1989.
10. It has been argued by the learned AGP that vide G.R. dated 31.3.1989 the appellant was required to fill up self- appraisal part-I of FORM-II of the ACR and submit it to the Reporting Officer. According to the respondent, the department found on 24.10.2007 that the said self-appraisal form was not available and thus according to the respondent, the appellant had not filled up the self-appraisal Part-II of FORM-II of the ACR and ultimately GAD had to issue blank form of ACR to the Reporting Officer in November, 2007, xerox copy of which has been produced by the learned AGP. Stressing upon this point, learned AGP has submitted that the appellant being Class-I Officer, is expected of preparing his self-appraisal report in time and in turn submitting the same to the Reporting Officer. Here the respondent has wisely not submitted anything on that important aspect or on the responsibility prior to the same to be discharged by the concerned department/office as per the G.R. dated 31.3.1989 referred above. In fact the concerned branch/section/department/office has filled up the information in part-I of FORM-II related to the appellant from the record available with it before 21st of March and in turn handed over the same to the appellant to write down the self-appraisal report in Part-II of the ACR form. We are conscious of the observations made by the learned Single Judge in para 9 of the order dated 30.10.2009 referred above that the Government circulars providing time table for writing remarks are to be read as directory and cannot operate as a bar if there is any delay in writing remarks due to unavoidable reason. We are not on the point of delay but when the respondent has vehemently submitted that the appellant being a Class-I officer is expected to prepare his self-appraisal report in time and in turn submit the same to the Reporting Officer, in our view, the respondent wants to side track the issue and also appears shifting the burden of the concerned office on the appellant. We have carefully perused the affidavit-in-reply filed by the Joint Secretary on behalf of the respondent. The reply is silent on the point whether the office had discharged its duty in preparing and filling up the information in part-I of FORM-II and handed over it at any point of time to the appellant to write down the report and if in fact it had been handed over to the appellant then on which date/period/time. Suppose if the office had in fact carried out its duty as per the procedure laid down in Part-I of column No.8 of the G.R. dated 31.3.1989 then whether the appellant had written self-appraisal report in Part-II of FORM-II and returned it to the office for onward transmission of the same to the Reporting Officer. As per the submission on behalf of the respondent that the department found that the said self-appraisal form for the period under reference related to the appellant was not available till 24.10.2007, if that is so, what steps had been taken by the office or by the respondent against the erring officer/s responsible for non-availability of the concerned ACR related to the appellant. In our view, the respondent is deliberately and wisely and for the reasons best known to them, is avoiding the important aspect whether the office had filled up the information in part-I of ACR form of FORM-II to be filled up by the office and in fact handed over the same to the appellant so as to enable the appellant to write down the report. On this aspect, clear doubt arises against the respondent because the respondent had prepared details in tabular form to have a clear picture on the point of alleged delay which has been reproduced at para 9.1 hereinabove. The said chart also appears silent on the point as to when the office had filled up information in part-I and when the same had been handed over to the appellant to write down self- appraisal part-II of FORM II. As mentioned hereinabove, xerox copy of the ACRs pertaining to the appellant has been produced by the learned AGP. A perusal of the said ACRs, it appears that except column No.1 of the said part-I, columns 2 to 7 of part-I are blank which are supposed to have been filled up by the office and in our view, to fill up all the columns from the information available from the office is not merely a formality. As per the case of the respondent, though part-I of FORM-II of the ACR pertaining to the appellant was forwarded to the appellant for filling up the self-appraisal part-II, the appellant had not filled up the said appraisal form for almost about 20 months and after expiry of the time limit for submission of the self-appraisal, the GAD had to issue blank forms of ACR to the Reporting Officer in November, 2007. In our view, not to fill up self-appraisal form itself is a serious breach and misconduct on the part of the appellant and had the said fact being true, the respondent must have taken action against the appellant for non-submission of the ACR form part-II in time to the office but they have wisely found a way and ultimately GAD had issued blank form of ACR, xerox copy of which is on record. If that be so, the Reporting Officer should have insisted that part-I of FORM-II which was supposed to be filled up by the office from the record available must be filled up by the office prior to proceeding with the filling up of part-III of the ACR form to be filled up by the Reporting Officer. Column No.1 of part-III of ACR to be filled up by the Reporting Officer reads as under:
11. In the said column hyphen has been put up by the Reporting Officer against column No.1 referred above. If the case put up by the respondent as referred above is true, then the Reporting Officer should have written against column No.1 that though part-I is duly filled up and part-II of FORM-II were in fact forwarded to the appellant, he did not fill up the self- appraisal part-II for almost last 20 months and had not duly returned the same, the Reporting Officer was constrained to fill up the reporting Part III on blank form. It appears that the Reporting Officer had not thought it fit to write down the same and surprisingly observed silence by putting hyphen in part III of the ACR form which in our view, is the important column to be filled up by the Reporting Officer. This conduct of the Reporting Officer raises many questions which remained unanswered. In our view, observing silence on the part of Reporting Officer related to above referred column No.1 is nothing but non-application of mind and a deliberate attempt on her part to back out from her responsibilities because if she had mentioned the above aspects, then she could have observed something more for initiation of departmental inquiry against many erring officials and presumably therefore, she observed silence. Nothing substantial has been argued in this aspect by the respondent. Reply affidavit also appears silent whether the Reporting Officer shall keep ephemeral roll as mentioned in column (4) of the G.R. dated 31.3.1989.
12. As per the case of the respondent and the facts mentioned in tabular form referred above, the Reviewing Officer had filled up Part IV of ACR related to the appellant on 19.2.2008. Referring to page No.7, xerox copy of the ACR form produced by the learned AGP related to the appellant, part IV remarks of the Reviewing Officer, the column related to date is blank and no date had been filled up by the Reviewing Officer. No satisfactory explanation had come up from the learned AGP on the point as to how the respondent has shown in the tabular form that ACR had been reviewed on 19.2.2008.
13. Considering the above discussed aspects, on the issues involved in the case on hand, in our considered view, the learned Single Judge has committed error in his finding that even if the matter is to be considered on the ground as sought to be canvassed after taking into consideration the submissions by the appellant and the explanation of the Reporting Officer, it cannot be said that State Government has committed error apparent on the face of record for confirming the remarks in the Confidential Reports of the appellant/petitioner. Hence the order passed by the learned Single Judge dated 31.10.2009 is hereby set aside and consequently in our view, this LPA deserves to be allowed. In our considered view, without application of mind, as discussed above, the Reporting Officer and the Reviewing Officer had filled up part III and part IV respectively related to the appellant and hence the order dated 11.8.2009 confirming the adverse remark made in the ACR of the appellant between 1.4.2005 to 31.3.2006 is required to be set aside more particularly when the same had been prepared without maintaining ephemeral roll and without application of mind.
14. In the result, this LPA is allowed. The order dated 11.8.2009 passed by the State Government confirming the adverse remark made in the ACR of the appellant for the period between 1.4.2005 to 31.3.2006 is set aside and the said adverse remark made in column No.4(i) is hereby expunged. In view of the order passed in the Appeal, the Civil Application for stay does not survive and is accordingly disposed of.
[V.M. SAHAI, J.] [G. B. SHAH, J.] msp