State and Another vs Mahavir Pr. Goyal and Another

Ajay Rastogi, J.—Since both the petitions are filed by State of Rajasthan involving common question, hence are being disposed of by present order. Respondent No. 1 while substantively holding post of Accountant challenged order dt. 24/12/1988 whereby certain promotions were made on the recommendations by departmental promotion committee on review & revision basis on the post of Assistant Accounts Officer against vacancies of year 1987-88. However, respondent No. 1 was senior in the cadre but was found unsuitable on the premise that there were adverse remarks in his APAR of 1982-83 & 1987-88, which he assailed before the Tribunal in appeal No. 5/89 inter-alia contending that remarks recorded in APAR of 1982-83 were communicated to him after inordinate delay and on this count, alone, very adverse remarks & letter of rejection of his representation against it deserve to be set aside, alongwith remarks in APAR of 1987-88, and consequential his very super-cession made by State Government while passing order dt.24/12/88 promoting his juniors from the cadre of Accountant on review/revision on the post of Assistant Accounts Officer, was bad.

Learned Tribunal while deciding appeal- 5/89 preferred by respondent-employee vide judgment dt.22/11/93 set aside rejection of his representation and expunged adverse remarks in APAR of 1982-83 on the premise that there was inordinate delay in communicating the same and the delay having not been explained, and being fatal, has thus caused prejudice to the employee; but at the same time, maintained adverse remarks in APAR of 1987-88; and since the promotions were made on review & revision on urgent/temporary basis vide order dt.24/12/88, it has not considered appropriate to interfere. However, State Government made regular promotions on the post of Assistant Accounts Officer against vacancy of 1989-90 vide order dt.29/08/89 on the recommendations made by DPC - in course whereof, adverse remarks recorded in APARs of 1982-83 & 1987-88 were considered to be the basis for holding respondent employee to be unsuitable for promotion, against which employee (respondent) again preferred appeal-366/1989. After adjudication whereof, vide judgment dt. 08/03/94 (Ann.3-CWP-941/95), learned Tribunal observed that as regards adverse remarks in APAR of 1982-83 since were set aside while disposing of his appeal-5/89 vide judgment dt.22/11/93; as such, State Government committed an apparent error while taking note of adverse remarks in APARs of 1982-83, while considering him for promotion against vacancy of 1989-90 and as per judgment dt.22/11/93 while disposing of appeal- 5/89, his candidature was required to be reviewed for promotion to the post of Assistant Accounts Officer.

Government Counsel for petition (State) submits that there was no delay communicating adverse remarks in APAR of 1982-83; in absence whereof, learned Tribunal committed an error in expunging those remarks - only in respect whereof, instant petitions have been filed. As regards latter judgment dt.08/03/94 (Ann.3) of learned Tribunal, it only directs the State Government to review in the light of earlier judgment dt.22/11/93.

Government Counsel submits that interference made by learned Tribunal while expunging remarks in APAR of 1982-83 was without jurisdiction, there was no occasion for learned Tribunal to direct for holding review DPC of the year 1989-90 for the post of Asstt. Accounts Officer, since it was not the case of employee that his candidature was not considered while regular promotions were made; in such circumstances, learned Tribunal committed an apparent error in passing order impugned and as such both the orders of learned Tribunal deserves to be set aside.

Counsel for respondent-employee while supporting the findings recorded by learned Tribunal, submits that the employee had assailed order by which promotions were made on the review/revision basis on the post of Assistant Accounts Officer and in the light of judgment of this Court (Full Bench) in Tayyab Ali v. State 1998 1 RLR 1, if adverse remarks recorded in APAR have caused prejudice, certainly the same can be challenged before the tribunal; in such circumstances, no error was committed by learned Tribunal in passing the orders impugned. In addition to it, Counsel further submits that there was inordinate delay in communicating adverse remarks recorded in APARs of 1982-83, which being not explained by State Government has frustrated the very object of its communication; as such learned Tribunal has not committed any error in expunging the remarks. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Adverse remarks in APARs of 1982-83 were communicated to the employee after almost more than five years for which, no justification otherwise has come forward by State Government, whereas as per Schedule to the Instructions dt.30/03/1976, time schedule has been provided in which adverse remarks are to be communicated latest by 15th June of succeeding; and if the delay in its communication has caused prejudice, certainly that can be interfered by learned Tribunal. In instant case, adverse remarks recorded in APARs of 1982-83 were belatedly communicated and were considered by the DPC when his candidature was considered for promotion on review & revision basis and so also at a later stage against vacancies of 1989-90 on regular basis while holding him unsuitable for the post of Asstt. Accounts Officer. Once remarks in APAR of 1982- 83 were expunged by learned Tribunal vide judgment dt. 22/11/93, it was incumbent upon the State Government to ignore those remarks in APAR of 1982-83 while considering his candidature for promotion to the post of Asstt. Accounts Officer against the vacancy of year 1989-90 while regular promotions were made. This is an apparent error which the State has committed while making promotions vide order dt.29/08/89 and this was clarified by learned Tribunal while disposing of subsequent appeal-366/89 decided vide order dt.08/03/94. This Court does not find manifest error which may call for interfere in the orders impugned.

However, learned Tribunal in its order impugned has made reference with regard to alleged adverse remarks in APAR of 1986-87, which appears to be a typographical error. Adverse remarks were recorded in APARS of 1982- 83 & 1987-88 while regular promotions being made against vacancy of year 1989-90 to the post of Asstt. Accounts Officers; hence it is clarified that while candidature of respondent employee is being considered for regular promotions against vacancies of 1989-90 for the post of Asstt. Accounts Officer, adverse remarks in APARS of 1987-88 can be taken note of while adjudging his suitability.

With the clarification (supra), writ petitions stand disposed of and the petitioner may ensure compliance within three months. No order as to costs.