1. By way of this petition the petitioner has challenged the communication at Annexure-E dated 18th April, 2000, by which the petitioner was communicated about his adverse remarks in his service record. The petitioner has also challenged the order by which his representation was rejected in this behalf. At the relevant point of time the petitioner was serving as Assistant Teacher and was also holding post of Head Master. The petitioner was communicated adverse remarks for the period between 01st April, 1998 and 31st March, 1999 after some delay. As per the said adverse entry, which is communicated to the petitioner, his knowledge in the subject of science is not proper and his control over the administration is also not found to be proper and his capacity to train the student is also not found to be proper. The petitioner was asked to make representation, if he is so aggrieved with the said representation, within six weeks to the Authority. The petitioner thereafter made a representation, but the said adverse entry was retained in the service record. The said decision has been challenged by the petitioner by way of this petition.
2. Learned counsel Mr.Bipin Jasani for the petitioner argued that the adverse entry for the relevant period was communicated to the petitioner after one year and that too after the claim of the petitioner for higher pay- scale arose in the year 2000. It is submitted that in view of said late communication of adverse entry, which was communicated to the petitioner after one year, it can be said that the petitioner was subjected to injustice as in the year 2000 when his claim for considering higher pay-scale was considered on the basis of the said adverse entry. The representation made against the same is also rejected. It is submitted that in view of the said fact the higher pay-scale, which was made available to him after one year, i.e. in the year 2001 instead of 2000, which is based in view of adverse entry, is required to be quashed and set aside and benefit should be made available to him from the time when he was entitled, i.e. from July, 2000.
3. Learned Assistant Government Pleader Reeta Chandarana on the other hand states that there was some delay in communicating the adverse remarks, but subsequently the petitioner has been given benefit of higher pay-scale from 15th July, 2001 instead of 15th July, 2000. Learned Assistant Government Pleader submitted that in view of adverse remarks for the year 1998-99, adverse entry was posted in the service book of the petitioner and accordingly benefit of higher pay-scale was given after one year. On merits learned Assistant Government Pleader submits that performance of the petitioner was average one and therefore, at the relevant point of time, because of his service performance, adverse entries were recorded in the service book of the petitioner.
4. I have heard both the sides and also gone through the petition along with annexures forming part of the petition. For the purpose of giving benefit of higher pay-scale, last five years C.R.s is required to be taken into consideration, i.e. from 1994 to 1999. The claim of the petitioner that higher pay-scale was arose on 14th July, 2000. At that time no adverse entry was communicated to the petitioner. In view of the same, in my view, the petitioner could not have been denied the said benefit from the said date as at that time, no adverse entry was communicated and at a later point of time it was communicated after recording the same in service record. Late communication of adverse entry therefore deprive the petitioner from making effective representation to the Authority. Learned Assistant Government Pleader submits that as per affidavit-in-reply, there was some delay in communicating the same to the petitioner. At Page No.72 it is averred as under:
“I say that adverse remarks of the any employee in the confidential report are to be intimated to the employee within 6 weeks but in this case the petitioner who working as a Assistant Teacher in Ideal Residential School was intimated about his adverse remarks after some delay and this delay was due to Administrative delay and the said delay does not affected. The case of the petitioner in any way”
5. In my view, when five years of CRs are required to be taken into consideration, i.e. from 1994 to 1999, for giving benefit of higher pay-scale and when admittedly within stipulated time, it can be said that the petitioner was denied opportunity of making effective representation at the relevant point of time. It is true that the said benefit has been given to the petitioner from the next year, i.e. from 2001, but in my view, since explanation for late communication is not at all justified, such adverse entry should not come in way of the petitioner for getting higher pay-scale from 15th July, 2000 instead of 15th July, 2001. In this connection, a reference is required to be made to the decision of learned Sing Judge of this Court in the case of M.U. Shaikh v Director of Employment and Training reported in 1996 (3) GCD 722 (Guj). In this case, the learned Sing Judge has held that there is no dispute about the fact that adverse entries were required to be communicated within six weeks after completion of C.R. of the relevant period, for which they are written. In paragraph 6 of the said judgment, it has been held as under:
“6. The adverse entry for the year 1976-77 was communicated to the petitioner on 20th March, 1978, i.e. nearly after 47 weeks, instead of six weeks, from the completion of the confidential reports for the relevant period. The adverse remarks for the period 9-6-1977 to 16-1-1978 were communicated to him on 19-4-1979, i.e. nearly 50 weeks after the completion of the confidential reports for the said period. According to the petitioner, he had not received the communication dated 19-4-1979 and, therefore, the adverse remarks were communicated to him on 17-3-1982 and if that date is to be reckoned, then, the remarks were communicated 184 weeks after the completion of the confidential reports for the relevant period. There is no dispute about the fact that the adverse remarks were required to be communicated within six weeks after the completion of the confidential reports for the relevant period for which they are written. It has been held by the Supreme Court in State of Haryana vs.
P.C. Wadhwa, AIR 1987 SC 1201 that the whole object of making and communicating adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. The provisions relating to communication of adverse entries, although directory in nature, is required to be complied with substantially. A directory provision cannot altogether be ignored. In P.C. Wadhwa's case (supra), the Supreme Court held that if the circular provided a total period of seven months as the maximum period, within which adverse remarks, if any, had to be communicated to the officer concerned, and if they were actually communicated after 27 months, i.e. after about four times the period prescribed under the Rules, there was unreasonable delay in communicating the remarks and therefore, there was on substantial compliance with the provisions of the Rules, which require remarks to be communicated. In C.N. Chavda vs D.G.P., reported in 1992 (1) GLH 209, replying upon the decision in P.C. Wadhwa's case, this High Court held that the adverse remarks communicated more than 13 months after the relevant period was over, was grossly delayed. Delay of four times was held to be unreasonable in P.C. Wadhwa's case. Therefore, so far as the adverse remarks for the year 1976-77 and for the period 9-6-1977 to 15-1-1978 are concerned, the communications having been unduly delayed, they could not have been relied upon by the concerned authority in the instant case for the purpose of withholding the petitioner's increments at the stage of crossing of the Efficiency Bar with effect from 1st January, 1978.
6. In view of above, the petition is required to be allowed on the ground that adverse remarks were communicated without any justification at a very late stage and considering the averments made in the affidavit, there is no justification for communicating the same to the petitioner at such a late stage. The petition is accordingly allowed. The order impugned in the present petition is quashed and set aside. Respondents are directed to give benefit of higher pay-scale to the petitioner with effect from 14th July, 2000 instead from 14th July, 2001. If any amount is required to be paid to the petitioner in this behalf, the same may be paid within a period of three months from today. Rule is made absolute accordingly with no order as to cost.
(P.B. Majmudar, J) Anup