Shri Rajinder Sharma vs Himachal Pradesh Tourism Development Corporation and Sh. R.L. Sharma, Deputy General Managers

Justice V.K. Sharma, Judge

The petitioner is aggrieved by adverse remarks in his ACRs for the years 1994-95 and 1995-96 conveyed to him vide memos dated 23rd September, 1995, Annexure A-3 and 11th February, 1997, Annexure A-7 on the following grounds set up vide para 6 (xv) (A) to (D) and (E):-

(A). That the impugned Annexures A-5 dated August 03, 1996 and A-9 dated May 01, 1997; and Annexure A-13 dated April 30, 1998 are illegal, unjust, arbitrary, discriminatory and unjustifiable; and thus violative of Articles 14 and 16 of the Constitution of India.

(B). That no reasons have been given while rejecting the applicant''s representation against the adverse entries in the Confidential Reports for the years 1994-95 and 1995-96 vide Annexures A-5 and A-9. It is settled law that all the orders passed by the administrative authority having civil consequences must be supported with reasons.

(C). That the respondent Corporation has not followed the instructions issued by the State of Himachal Pradesh with regard to ACR as adopted by it while recording adverse remarks in the applicant''s ACRs for the years 1994-95 and 1995-96. The various time schedules prescribed for ACRs have not been followed by the respondent Corporation. The representations made by the applicant have been decided very late which has prejudiced the applicant. The applicant was conveyed the adverse remarks for the year 1994-95 on September 23, 1995 and his representation had been rejected on August 03, 1996. Similarly, the applicant has been conveyed adverse entries for the year 1995-96 on February 11, 1997 and the representation has been rejected on May 01, 1997.

(D). That it is evident from the seniority lists (Annexure A-10 and Annexure A-11) that the applicant was figuring at serial No. 10 on December 15, 1993 and was figuring at serial No. 1 in the tentative seniority list as it stood on October 31, 1997 and the respondents No. 2 and 3, who have been promoted vide Annexure A-13 to the post of Deputy General Manager was below the applicant. The representation made by the applicant against the illegal promotion of respondents No. 2 & 3 has not been considered by the competent authority till date.

(E). That the adverse remarks as recorded and conveyed to the applicant are vague, subjective and unspecific, ill-founded and have been recorded with mala fide intention and ulterior motive. The applicant, being a professional in the field of Hotel Management, well-equipped with qualification and long experience, have shown positive financial results during 1994-95 increasing profits from Rs. 8 lac to Rs. 31.04 lac. He also maintained cordial and harmonious relations with his subordinate staff and managed the affairs of Dharamsala Complex during the year 1994-95 throughout. It is pertinent to mention here that after applicant''s transfer the profits of Dharamsala Complex came down from Rs. 31 lac to Rs. 14.74 lac. Thus, it cannot be fairly said that the applicant lacked leadership quality, nor can he be recorded poor in administration. The applicant rather had shouldered additional responsibilities as detailed in Anenxure A-6.

On the above averments, the petition has been filed on the following substantive prayers vide para 7 (i) to (iii) and (iv):-

(i). That the impugned Annexures A-5 dated August 03, 1996; A-9 dated May 01, 1997 and A-13 dated April 30, 1998 may be quashed and set aside.

(ii). That respondent No. 1 may be directed to consider the case of the applicant for promotion to the post of Deputy General Manager from the date the persons junior to him have been considered.

(iii). That the applicant may be granted all consequential benefits, like seniority, arrears of salary etc. after considering him for the post of Deputy General Manager.

(iv). That the adverse remarks made in the ACRs of the applicant for the years 1994-95 and 1995- 96 conveyed to him vide Annexures A-3 dated September 23, 1995 and Annexure A-7 dated February 11, 1997 may kindly be expunged.

In reply on behalf of respondent No. 1, the following stand has been taken vide para 6 (v), (vi) and (vii):-

(v). It is submitted that the applicant represented to the Chairman of the Corporation against the adverse remarks in his ACR. It may be submitted here that under the rules of the respondent Corporation an appeal against the order passed by the Managing Director lies to the Board of Directors and not to the Chairman.

(vi). It is submitted that the applicant represented to the Chairman of the Board of Directors of the respondent Corporation vide Annexure A-6.

(vii). The representation, and not the appeal as wrongly stated by the applicant, was rejected vide Annexure A-9 on 01.05.97 informing that there seemed no reason to review the remarks. It may also be added here that the appeal and representation of the applicant against the adverse remarks in his ACRs for the years 1994-95 and 1995-96 respectively were also placed before the Service Appeals Committee of the Board of Directors in its meeting held on 8.1.99 for examination and recommendations. The Service Appeals Committee after examining the relevant record and considering the matter found no reason to expunge the adverse entries. The Committee recommended the rejection of appeal. The recommendations of the Service Appeals Committee were accepted by the Board of Directors in its meeting held on 22.03.99. Rejection was also conveyed to the applicant on 16.04.99.

There is no reply on behalf of the remaining respondents. However, at the time of hearing, respondent No. 2 has adopted the reply filed on behalf of respondent No. 1.

In the facts and circumstances of the case and in view of the above reply, the petition is disposed of with a direction that subject to the petitioner making a detailed representation supported by documents, if any, along with copy of this judgment to respondent No. 1/competent authority within 30 days from the date of receipt of copy of the judgment, who shall consider the same and take final decision in the matter afresh in accordance with law within further three months, after affording an opportunity of being heard to the petitioner and respondents No. 2 & 3, if so desired.

The petition stands disposed of in the above terms, so also pending application(s), if any.