Case Note & Summary
The petitioner, F H Shaikh, joined service on 10/05/1982 as a Class-II officer (Principal) under the Director of Employment and Training, Gujarat State. He sought promotion to the post of Assistant Director (Training) (Class-I). The Gujarat Public Service Commission issued an advertisement in 1985 for direct recruitment and promotion. The petitioner's case was considered for promotion, but the Departmental Promotion Committee (DPC) deferred his case due to adverse remarks in his Annual Confidential Report (ACR) for the year 1997-98. These remarks were never communicated to the petitioner. Consequently, the petitioner was denied promotion, and the respondents relied on the uncommunicated adverse remarks to deny him further promotions, including to Deputy Director and Joint Director. The petitioner filed a Special Civil Application under Article 226 of the Constitution of India seeking to quash the orders dated 09.07.2010, 16.06.1999, and the notice dated 31.12.1998, which were based on these adverse remarks. The court analyzed the legal position regarding communication of adverse remarks and held that non-communication violates principles of natural justice. The court relied on the Supreme Court's decision in Dev Dutt v. Union of India, which held that every entry in the ACR, whether good or bad, must be communicated to the employee. The court also referred to the case of Abhijit Ghosh Dastidar v. Union of India, which reiterated that uncommunicated remarks cannot be used to deny promotion. The court quashed the impugned orders and directed the respondents to reconsider the petitioner's promotion without considering the uncommunicated adverse remarks, and to grant consequential benefits.
Headnote
A) Service Law - Adverse Remarks - Non-Communication - Principles of Natural Justice - The court considered whether adverse entries in the ACR of a government servant, which were never communicated to him, can be used to deny promotion. Held that non-communication of adverse remarks violates principles of natural justice and such remarks cannot be considered for promotion. The court quashed the orders denying promotion and directed reconsideration. (Paras 1-23) B) Constitutional Law - Article 226 - Judicial Review - The court exercised its writ jurisdiction under Article 226 of the Constitution of India to quash the impugned orders dated 09.07.2010, 16.06.1999, and the notice dated 31.12.1998, as they were based on uncommunicated adverse remarks. (Paras 2, 23) C) Service Law - Promotion - Sealed Cover Procedure - The court held that the sealed cover procedure cannot be applied when adverse remarks are not communicated, as the employee is deprived of an opportunity to represent. (Paras 18-22)
Issue of Consideration
Whether adverse remarks recorded in the Annual Confidential Report (ACR) of a government servant, which were not communicated to him, can be relied upon to deny promotion, and whether the non-communication violates principles of natural justice.
Final Decision
The court allowed the petition, quashed the impugned orders dated 09.07.2010, 16.06.1999, and the notice dated 31.12.1998, and directed the respondents to reconsider the petitioner's promotion without considering the uncommunicated adverse remarks, and to grant consequential benefits.
Law Points
- Natural justice
- adverse remarks
- non-communication
- service law
- promotion
- Article 226
- Gujarat Civil Services (Classification and Recruitment) Rules
