Ram Niwas Sharma Science Master, Government High School Bahu v. The State of Haryana

Mr.Sukhvinder Singh Nara, Sr. DAG, Haryana for the respondents-State. M. Jeyapaul, J(Oral). The petitioner, who was allegedly denied due promotion as on 13.02.1984 on the ground that some adverse remarks had been entered in his confidential file during the period 1975-76 and 1976-77, has come out with the present writ petition, praying to quash the very adverse remarks, conveyed Civil Writ Petition No.12098 of 1989 -2- to him belatedly. A writ of mandamus has also been sought to consider the case of the petitioner for promotion w.e.f.13.02.1984 ignoring the adverse remarks entered during the period 1976-77.

The petitioner was appointed as Science Master way back on 13.07.1964. He stood at 761st position in the seniority list. His grievance is that his juniors, positioned at Sr. No.762 to 908, were promoted to the post of Head Master w.e.f.

13.02.1984 but unfortunately his case for promotion was ignored by the respondents.

The petitioner filed a Civil Suit No.32/8.1.1986 before the learned Sub Judge IInd Class, Mohindergarh, praying for declaration that he was entitled to be promoted as Head Master in the High School w.e.f. 13.02.1984. The trail Court passed a decreed, as prayed for by the petitioner. The respondents-State preferred Civil Appeal No. 348 dated

14.10.1986 before the Additional District Judge, Narnaul. The Appellate Court modified the decree, passed by the trial Court and granted a moulded relief to the effect that the respondents- State shall consider the case of the petitioner for promotion for the post of Head Master w.e.f. 13.02.1984.

The petitioner filed an execution application No.81 of 1987 before the trial Court. When the same was pending for disposal, adverse remarks in the confidential file of the Civil Writ Petition No.12098 of 1989 -3- petitioner relating to the period from 1975-76 and 1976-77, were communicated to the petitioner as on 03.11.1987. The petitioner offered his explanation. The second respondent was pleased to expunge the adverse remarks of the petitioner, entered in the confidential report relating to the period 1975-76 but rejected the plea to expunge the adverse remarks related to the period 1976-77.

Aggrieved by such rejection of his plea for expunging the adverse remarks for the period 1976-77, the petitioner has come forward with the present writ petition.

The learned Senior Counsel appearing for the petitioner would submit that the second respondent chose to communicate the adverse remarks entered in the confidential file of the petitioner, relating to the period 1975-76 and 1976- 77 only on 03.11.1987. Whatever may be, the explanation given by the petitioner for such adverse remarks, the second respondent has not considered it. As the adverse remarks relating to the period 1976-77 was belatedly communicated to the petitioner, it is his vehement submission that the belated communication of the adverse remarks shall be ignored and such adverse remarks cannot be a basis for denial of due promotion to the petitioner.

The learned Government Pleader appearing for the respondents-State would submit that the adverse remarks Civil Writ Petition No.12098 of 1989 -4- entered in the confidential file of the petitioner relating to the period 1975-76 and 1976-77 were thoroughly considered by the second respondent and the explanation to the adverse remarks for the period 1975-76 was expunged on merits and the adverse remarks recorded for the period 1976-77 was sustained as the same was meritless. It is his submission that as adverse remarks have been entered in the service record of the petitioner, the second respondent has rightly rejected the promotion of the petitioner from 13.02.1984.

It is brought to the notice of this Court by the learned Counsel appearing for the petitioner during the course of arguments that though this writ petition was filed way back in the year 1989, the petitioner was given promotion w.e.f.

16.11.1994. But the grievance of the petitioner is that his due promotion was denied for the prior period commencing from

13.02.1984.

The fact remains that the petitioner was positioned at Sr. No. 761 in the seniority list, maintained by the second respondent. Having ignored the petitioner for promotion, the juniors of the petitioner positioned at Sr. No. 762 to 908 in the seniority list of Head Master, were considered by the second respondent and they have been promoted w.e.f. 13.02.1984.

The petitioner has laid a suit against the respondent claiming his promotion w.e.f. 13.02.1984 way back Civil Writ Petition No.12098 of 1989 -5- in the year 1986. Only thereafter in the year 1987, the second respondent has come out with the plea that promotion of the petitioner was denied as two adverse remarks had been entered in his confidential report relating to the period 1975-76 and 1976-77. The explanation given by the petitioner was accepted with regard to the adverse remarks relating to the period 1975-

But I am concerned with the adverse report which was sustained for the period 1976-77 and was communicated only on 03.11.1987.

The adverse entry made in the confidential record of the petitioner for the period 1976-77 was not at all communicated in time to the petitioner to mend himself. Only on 03.11.1987, the second respondent chose to communicate the adverse entry made for the period 1976-77.

Under the circular issued by the Chief Secretary to Government Haryana bearing No.5990-3S-73/10873 instructions have been issued to all the Heads of Departments that the employee should not be kept ignorant of the adverse remarks made in the annual confidential file. The adverse remarks shall be conveyed to the employee promptly. It has also been made clear through the said circular that the Heads of Departments shall not take into consideration the adverse remarks, which have not been conveyed to the employee in time. Civil Writ Petition No.12098 of 1989 -6-

It has been observed by the Hon'ble Supreme Court in Baidyanath Mahapatra v. State of Orissa and another 1989(4) Services Law Reporter 220 that if the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating the entries would be defeated. It is, therefore imperative that the adverse entries, awarded to a Government servant must be communicated to him within a reasonable period to afford him an opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustified.

Very strangely in this case, the second respondent woke up to the occasion only when the petitioner having been aggrieved by the denial of the promotion, approached the civil Court seeking necessary declaration as on 13.02.1984 and communicated the adverse entry recorded for the period 1976-

Firstly the act of the second respondent goes against the instructions issued by the Chief Secretary to Government Haryana, to all the Heads of Departments. Secondly the petitioner was not given an opportunity to mend himself in the light of the adverse entry made in his confidential report. Therefore, the confidential entry made in the year 1976-77 and communicated belatedly on 03.11.1987 cannot at all be considered by the second respondent while taking up the case of the petitioner for promotion to the post of Head Master. Civil Writ Petition No.12098 of 1989 -7-

Of course it is now brought to the notice of this Court that the petitioner was belatedly promoted on 16.11.1994 during the pendency of this writ petition. The second respondent should not have considered the adverse entry made for the period 1976-77, which was not communicated to the petitioner as on 13.02.1984. In other words, the second respondent should have considered the case of the petitioner for promotion as on 13.02.1984 itself, ignoring the adverse entries which was not communicated for so long a time.

In view of the settled preposition of law, the belated communication of the adverse remarks to the petitioner- employee for the period 1976-77 stands quashed. Consequently a mandamus is issued to the respondents to consider the case of the petitioner for promotion w.e.f. 13.02.1984, ignoring the adverse remarks for the period 1976-77. It is also made clear that the petitioner is entitled to all the attendant benefits including pensionary benefits right from the modified date of promotion.

With the above directions, the writ petition is allowed. There is no order as to costs. (M. Jeyapaul) Judge

28.10.2010 dinesh