(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.A.S.Supehia, learned counsel appearing for the appellant and Mr.Rakesh Patel, learned Assistant Government Pleader appearing for the respondents.
2. This Letters Patent Appeal has been filed challenging the order dated 24.1.2012 passed by the learned Single Judge in Special Civil Application No.286 of 2012 by which the writ petition filed by the appellant has been dismissed wherein the appellant had challenged the order dated 30.7.2010 granting higher pay scale from 12.3.2002 instead of 12.3.2001. However, prayer made by the appellant is that adverse entry awarded to him and communicated to him on 20.6.2000 be set aside and consequently, consequential order dated 27.9.2011 be also set aside.
3. The appellant is working as a Supervisor Instructor/Craft Instructor in I.T.I., Palanpur. He was appointed as Craft Inspector on 12.3.1992. By the order dated 12.3.2001, the date on which he has completed nine years' service, he was entitled for higher grade scale as per the Government Resolution dated 16.8.1994. In the order dated 13.7.2010, it was mentioned that due to adverse remarks in the Annual Confidential Report of the appellant for the year 1999-2000, higher grade scale is given late by one year. It is not disputed by the appellant that he did not challenge the adverse remarks after it was communicated to him. According to the learned counsel appearing for the appellant, he is entitled to challenge adverse remarks as and when need arises and when it pinches the employee. He has placed reliance on the decision of the learned Single Judge in K.M.Parmar v. State of Gujarat, 2000(1) GCD 599. The order is a short one and therefore, the entire order is extracted below.
"1.Heard learned counsel for the parties.
2. The petitioner, Assistant Commissioner of Labour, Government of Gujarat filed this special civil application and prayed for quashing of the adverse remarks, which have been made in his service record for the year 1995-
96. The learned counsel for the petitioner admits that as a result of these adverse remarks no prejudice is caused to the petitioner so far. The adverse remarks in the service record of the petitioner has no significance as such. Merely because of these adverse remarks the petitioner's salary is not reduced nor his increment is stopped. It is also to be noticed that in many of the cases even the adverse remarks may not be taken into consideration while the case of the officer is considered for promotion for the next higher post. These adverse remarks may be relevant at the stage where the petitioner's case is considered for higher pay scale or selection scale or promotion or where his case is considered for giving him compulsory retirement. If on the basis of adverse remarks any adverse order is passed then only cause of action may accrue to the petitioner and while challenging the order passed prejudicial to him relying on these adverse remarks, he has right to challenge the same also. So at this stage this special civil application is premature and only on this ground the same deserves to be dismissed and accordingly it is dismissed.
Rule discharged. No order as to costs."
4. In this decision, the learned Single Judge has taken a view that adverse remarks could be challenged by an employee at a stage when the case is taken up for promotion on the next higher grade or selection scale or promotion or where his case is to be considered for giving him compulsory retirement. In our opinion, the view taken by the learned Single Judge is not correct. Adverse remarks awarded to an employee has to be challenged by him within time prescribed by the rules and if there are no rules, then within a reasonable time. If adverse remarks are not challenged within reasonable time, it becomes final and binding on the employee. Therefore, it was not open to the appellant challenge the adverse remarks after 10 years. In view of the adverse remarks, the respondents have granted higher grade scale one year late to the appellant, as the Government Resolution says that five years' entries have to be considered for awarding higher grade scale. In five years the appellant had one adverse entry. We do not find any illegality in the order passed by the respondents or the order passed by the learned Single Judge. The decision in K.M.Parmar vs. State of Gujarat (supra), does not law down law correctly and as such it is overruled. This Letters Patent Appeal is devoid of any merits and it is accordingly dismissed. Civil Application also stands dismissed.
(V.M.SAHAI,J) (G.B.SHAH,J) ***vcdarji