Kantilal G. Shah v. State Of Gujarat .

S.A Shah, J.:— The petitioner who was at the relevant time working as Mamlatdar (Camp Commandant), Tharad, District Banaskantha, challeges the order of his compulsory retirement, dated 6th July, 1976, produced at annexure-B; being arbitrary, ultra vires and void.

2. In order to appreciate the contention of the petitioner, it is necessary to mention the facts. The petitioner had put in 33 years' service and he was working for the last ten years as Mamlatdar before he was compulsorily retired. The petitioner had passed the Revenue Qualifying Examination in July, 1953 and he was promoted to the post of Aval Karkun and thereafter he was promoted as Mamlatdar in December, 1966 which post he held till July, 1976. In para 3 of the petition the petitioner has averred that during his long service of more than 33 years he was never punished for any misconduct nor has he received any adverse remarks except once covering a period of about ten months, and the said adverse remark was made only by one susperior officer of the petitioner due to some personal grudge and for no other reasons. He further says that his work was appreciated and was awarded cash prize of Rs. 200/- and a shield for the best work in family planning from 15-11-1972 to 15-2-1973.

3. It appears that for the first time, by a communication dated 12-10-1975 issued by the Collector, Surendranagar District, the petitioner received adverse remarks for the period 1-1-1974 to 2-7-1974 (as Mamlatdar, Patdi) and 8-7-74 to 19-10-74 (as Mamlatdar, Sayala), Part of the remarks being very material is reproduced below:

“There were complaints of corruption: in habit of referring matters back to delay the cases; not a good judge of persons; not able to control the staff; not fit for executive job: Grading ‘Poor’. “Prompt in taking decision, but depends upon subordinates; speed of disposal slow; assessment of persons is objective; easy going, lazy, not willing to accept responsibility. Grading ‘average’.”

4. These remarks were not communicated to the petitioner for about a year. It is the contention of the petitioner that he was having good record of service as stated by him in para 5 of the petition to the effect that:

“This was the first adverse remark that the petitioner had received in his long career of 33 years. Before tbis, the petitioner was rated ‘good’ and hence he was never communicated adverse remarks or even the remarks of ‘fair’. The petitioner was, therefore, very much shocked by this Sweeping remarks in the confidential remarks, wide annexure A.”

5. Reply to this paragraph is given in the affidavit-in-reply filed by Shri M.’ M. Anjaria, under Secretary to Government, Revenue Department which is very vague and reads as under:

“There are also many adverse remarks in his Confidential Reports for the period from 3-7-1972 to 31-12-72, 1-1-74 to 2-7-74 and 8-7-74 to 19-10-74”.

6. It is now admitted that so far as the period from 3-7-72 to 31-12-72 is concerned, the adverse remarks, if any, had not been communicated. I asked the Government Solicitors to produce the remarks for the period upto 31-12-1972. This Confidential Report for the period 3-7-72 to 31-12-72 contains 12 columns. Column No. 12 is the general assessment of the officer which in terms states that “a good officer”. Out of the other 11 columns, columns No. 1, 2, 3, 3, 5, 8, 9, 10 and 11 assess him as a ‘good officer’. Only column No. 4 and 6 show that he is ‘average’. While the general remark is ‘good’ and grading in column 13 which is the overall assessment also appears to be good. It, therefore, follows that the grading which has been given in column 13 is ‘good’ and that the remarks have not been communicated which clearly shows that the answer given by the deponent is not correct. I asked Mr. Bukhari, learned counsel for the State Government as to how in the affidavit the deponent has stated that there were adverse remarks. Mr. Bukhari was not in a position to answer except to say, by taking instructions from the officers who are present, that there were ‘average’ remarks in two columns and, therefore, the same has been stated in the affidavit. In my opinion this answer of the learned counsel is not convincing. In the confidential report of an employee some columns may contain remarks like ‘outstanding’, ‘good’, ‘average’ etc. but ultimately column No. 13 gives the totality of his performance and gives the correct picture of the performance of the officer concerned. If the final grading is ‘good’ then the remarks are not required to be communicated because his performance is considered good for all purposes. The answer of Mr. Bukhari that if there is ‘fair’ grading in one of the columns, according to the instructions of his client, it is an adverse remark is not convincing or proper and, therefore, the very fact that the same has not been communicated also leads to the same inference. I, therefore, hold, that there was no adverse remark against the petitioner for the period 3-7-72 to 31-12-72.

7. So far as the adverse remark for the period 1-1-1974 to 2-7-74 is concerned, the same has been made by one Shri J.S Rajput, Deputy Collector, Dhrangadra, and for the period 8-7-74 to 19-10-74 is concerned the remark was made by Shri S.E Thakkar, Deputy Collector, on 12-5-1975. The remarks for both these periods have not been subjected to review, in accordance with Government notification dated 8th March, 1969. Curiously enough, the confidential report for the subsequent period i.e from 28-10-74 to 31-3-75 has been written and reviewed before 28-4-1975 and the grading which is given is ‘good’. Thereafter the remark for the period 1-4-75 to 4-8-75 also is ‘good’. All these reports were available before communication of the notice of compulsory retirement dated 15-3-1975. The third report for the period 4-8-75 to 31-3-1976 is also ‘good’ and the same was written on 30-4-76 i.e before taking final decision of compulsory retirement by the State Government. To summarise the above record, the position stands as under:

(i) That the remark in the confidential report for the period from 2-7-72 to 31-12-72 shows the performance of the petitioner as ‘good’ and the remarks have not been communicated which means that there was no adverse remark.

(ii) For the period 1-1-74 to 2-7-74 and 8-7-74 to 10-10-74 the remark is ‘poor’, but these remarks were put very late and the same were not subjected to the comments of the reviewing officer and the representation made against the said remarks was not disposed of till the compulsory retirement of the petitioner.

(iii) The report for the period from 28-10-74 to 31-3-75 is shown as ‘good’ and reviewed by the Collector on 24-5-75 i.e earlier than the previous report and prior to the notice of compulsory retirement.

(iv) 4-8-75 to 31-3-1976—the report is ‘good’, written on 30-4-76 before the final order was passed.

8. It appears from the above facts and circumstances that the petitioner had 33 years' unblemished service and he has not received any punishment, minor or major, and except for period of 10 to 11 months he had earned ‘good’ reports till he retired on 31-3-1976 i.e before the date of his compulsory retirement. So far as the period 1-1-74 to 19-10-74 is concerned, be has all of a sudden dropped in his performance so as to grade him from ‘good’ to ‘poor’ and the same has not been reviewed by anybody. Even then it was communicated to the petitioner by letter dated 12-10-1975 against which he made a representation which was not dispossed of till he was made to retire. In my opinion this shows a very sorry state of affairs. An officer who had good career throughout his service has been subjected to humiliation on acting upon the confidential remarks for eleven months which were not even reviewed by the reviewing officer and was communicated after a year, and the representation against which was not disposed of. Not only that the petitioner was made to retire but his appeal before the Committee has been rejected. It shows that there is complete non-application of mind by both the authorities. Even if any relief is granted, the humiliation suffered by the petitioner will not be remedied, and he will only be entitled to monetary; benefits. When a good officer “who has” earned ‘good’ remarks all throughout and, all of a sudden he is rated as ‘poor’ it is the duty of the reviewing authority and the State Government to find out the cause for such adverse, remarks. It is almost the duty of the reviewing Officer to see that the remark given to an officer is not passed by way of personal bias or prejudice. Otherwise, an officer who has remained ‘good’ throughout his career, cannot immediately fall to a poor grading. Whenever such occasion arises it is the bounden duty of the reviewing officer while reviewing the remarks, and the State Government while considering the representation to go deep into the matter and find out whether such remarks are genuine or are being made on-account of personal bias or prejudice especially when the authorities are acting upon such remarks for the purpose of removing the officer from his service.

9. So far as the Government resolution dated 4-8-75 is concerned, which requires that an officer should be atleast ‘good’ during the last three years of his attaining the age of 55 years which includes the previous good service, is also subjected to challenge. But as in this case, we are not concerned with such challenge which Mr. Tripathi tries to raise, because the case can be disposed of even on the facts as it exists, applying the said resolution.

10. Firstly the remarks for the period 1-1-1974 to 19-10-1974 cannot be taken into, consideration on two grounds, namely, (1) that the said remarks are not in accordance with the Government resolution dated 8-3-1969 because the same has not been reviewed by any officer and it was communicated very late; (2) that the representation immediately made by the petitioner on 8-11-1975 was not disposed of by the State Government till notice for compulsory retirement was issued on 15-3-1976 and the final order of compulsory retirement was passed on 6th July, 1976 which is produced at annexure-D.

11. In the case of Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368 : A.I.R 1979 Supreme Court, p. 1622, the Supreme Court has observed as under:

“The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.

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12. Unfortunately, for one reason or another not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified.”

13. There is also another authority of this Court which also takes the view that if the adverse remarks are not communicated or if the decision is taken before the representation of the concerned officer was disposed of, such action would be illegal. In the case of Dr. B.R Kulkarni v. Government of Gujarat, 19 GLR, p. 1021, P.D Desai, J., as he then was, relied upon the decision of this Court in Letters Patent Appeal No. 290 of 1974 decided on March 26, 1976, in which a Division Bench of this Court consisting of J.B Mehta and T.U Mehta, JJ. confirmed the decision dated July 9/10, 1974 rendered by B.K Mehta, J. in Special Civil Application No. 1506 of 1972 wherein the Select List prepared by the Selection Committee from amongst the officers belonging to Class II Cadre of the State Forest Service for the purpose of promotion to Class I Cadre was partly struck down on the ground that the Select List, in so far as it had completely excluded the petitioners on the basis of the alleged adverse entries in the confidential records which had never been duly finalized by the competent authority, was wholly illegal and ultra vires. In that case, the first petitioner was served with adverse remarks made in his confidential reports for ten years and the second petitioner was furnished with adverse remarks in the confidential reports made for five years at a time and the representation made by one of the petitioners against those adverse remarks was pending before the competent authority when the Select List was prepared. It was found in that case that those adverse remarks were the sole basis on which the petitioners' names were excluded from the Select List. It was held that great prejudice had resulted to the petitioners when they were served at a time with adverse remarks in respect of a number of previous years which were never communicated to them within a reasonable period as required by the relevant administrative directions and when the representation made by one of the petitioners against such adverse remarks was not even disposed of and that, under these circumstances, the exclusion of the petitioners on the sole basis of such confidential adverse entries was illegal and ultra vires. The ratio of this decision is that adverse remarks, which are not communicated within a reasonable time to the affected Government servant and against which no opportunity of representation has been afforded or, if afforded, such representation has not been disposed of, could not validly enter into consideration for the purposes of considering the claim for promotion.

14. The principles regarding adverse remarks that it should be communicated within reasonable time and that the representation made by the officer must be disposed of before the same can be considered for the purpose of promotion are equally applicable where the officer is considered for compulsory retirement. The adverse remarks, if they are not communicated within reasonable time or that the representation thereof is not disposed of by the State Government, cannot form the basis of compulsory retirement. The compulsory retirement of the petitioner, therefore, was bad on the ground that the Confidential Report was not reviewed before communication and that the communication was late and the representation of the petitioner was not disposed of before action was taken.

15. The deponent has further stated in his affidavit-in-reply that according to the circular dated 4-8-1975 the petitioners should be graded atleast “good” during the last three years, before he attained the age of 55 years. Mr. Tripathi, learned counsel for the petitioner has drawn my attention to the circulars regarding compulsory retirement prior to the circular of 4-8-75 and subsequent circular dated 2nd November, 1976. Prior to 4-8-1975 an officer of average record of performance was normally not to be retired prematurely which was modifiedin 1971 to the effect that the performance must be ‘Good’, but that performance was based upon the assessment of several years, and not restricted to three years. Subsequently, by the resolution dated 2nd November, 1976 the previous position has been restored inasmuch as that while reviewing cases for retention beyond 55 years of age, consideration should not be restricted to the last three years but reports during the last eight to ten years should invariably be taken into account, because taking reports of only three years into account was found to be manifestly unfair to the Government officers which resulted into nullifying the effect of consistently good record during the rest of the period. Relying upon this Mr. Tripathi states that the resolution of 1975 vests arbitrary powers in the State Government and the said resolution has not been applied to every case. Since the case can be decided on facts as stated earlier, it is not necessary to deal with this argument of Mr. Tripathi, though in my opinion a Government servant has a right to serve for the whole period till he attains the age of 58 years and he can be compulsorily retired only if it is necessary to do so in the public interest. Again, public interest is not dependent upon a solitary ‘poor’ or ‘average’ remark, if the officer has been graded ‘good’ throughout his career.

16. The impugned notice of compulsory retirement dated 15-3-1976 at Annexure-G and the impugned order of compulsory retirement dated 6th July, 1976 at Annexure-D were passed by taking into consideration the adverse remarks for the period from 1-1-1974 to 19-10-1974 which were not reviewed and the representation of the petition against those remarks was pending decision and, therefore, cannot be considered to be legal and proper. These remarks ought not have been considered for issuing the impugned notice and passing the impugned order at Annexure-D. The confidential records for the rest of the periods are not shown to be adverse and, therefore, are ‘good’ according to the averments made in the petition. The authorities had no power to compulsorily retire the petitioner. In the result both the notice dated 15-3-1976 for compulsory retirement, at Annexure-C and the final order dated 6th July, 1978 at Annexure-D and also order dated 9th June, 1978 rejecting the appeal produced at Annexure-F are quashed and set aside. Since the petitioner has already reached the age of superannuation (on completion of 58 years) there is no question of his reinstatement in service. It is, therefore, ordered that the petitioner will be deemed to be in service till he attained the age of superannuation i.e on 17-5-1979. The State Government shall pay the salary and wages that might be payable to the petitioner on the basis that he continued in service as Mamlatdar till he attained that age of superannuation and in the meantime if the petitioner was found entitled to higher promotion on the basis of his seniority the State Government shall consider his case for such promotion, and grant him all consequential benefits that might be available on such higher post, if the petitioner is promoted. The petition is allowed. Rule made absolute with costs.

17. Rule made absolute.