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Judgment
S.H. Kapadia, J.—By this Writ Petition, Petitioner seeks to challenge the letter dated 25.1.1989 and also the impugned remarks in the Annual Confidential Reports of the Petitioner for the years 1985-86, 1986-87 and 1987-88. By the Writ Petition, Petitioner inter alia seeks redesignation/promotion to the post of Assistant Engineer with effect from 1.4.1987. Petitioner claims difference in salary for the aforestated period with all consequential benefits.
At the outset, it may be mentioned that, in the present matter, Petitioner has been appointed as an Assistant Engineer with effect from 1.7.1989. However, Petitioner claims that he ought to have been redesignated as an Assistant Engineer from 1.4.1987 and accordingly Petitioner claims the above relief in the Writ Petition.
The facts giving rise to this Writ Petition briefly, are as follows.
Petitioner was employed by CIDCO as a Sub-Engineer on 1.3.1982 on probation for one year. He was confirmed on 1.3.1983. Under the Board Resolution dated 5.9.1986, it was decided that Sub-Engineers who arc Diploma Holders and who have put in five years of service as Sub-Engineers and who have satisfactory record during. the last three years service shall be included in the Cadre of Assistant Engineers Grade II in the Pay Scale of Rs. 600-950. This decision was taken in view of the State Government''s decision vide Government Resolution dated 16.4.1984. It was further decided in the said Resolution of the Board dated 5.9.1986 that for the purpose of selecting the Sub-Engineers to be included in the Cadre of Assistant Engineers, Grade-II, a Selection Committee would be formed and that redesignation would be done only as per recommendation of Committee. Petitioner completed his service of five years on 28.2.1987. On 25.9.1987, Petitioner was served with letter by which the Petitioner was informed about the remarks made in his Confidential Report for the years 1985-86 and 1986-87. Against the said letter, Petitioner made his representation on 7.10.1987 stating that his performance was satisfactory and that he was not given any prior notice before incorporation of the adverse remarks in his Confidential Report. Accordingly, Petitioner requested the remarks to be expunged. According to the said remarks. Petitioner, as a Sub-Engineer, was not able to take work from the employees under him. According to Petitioner''s case, there were no employees working under him as he was a Sub-Engineer and in the hierarchy of Engineers he was holding the lowest post. According to Petitioner, the remarks were made without application of mind. On 23.11.1987, 33 Sub-Engineers who were Diploma Holders and who have put in five years of service as on 1.4.1987 were redesignated and appointed as Assistant Engineers in the Pay Scale of Rs. 600-950. The name of Petitioner was not included in the said list. By another order dated 1.9.1989. six Sub-Engineers who had completed five years of service as on 1.4.1988 came to be redesignated as Assistant Engineers in the Pay Scale of Rs. 600-950 with effect from 1.4.1988. In the said list also, the name of the Petitioner did not figure. At this stage, it may be mentioned that even the remarks in Petitioner''s Confidential Records for the year 1987-88 indicate that his work was average. On receipt of the adverse entry in the Confidential Report for the year 1987-88, Petitioner made a representation to the Executive Engineer vide his letter dated 26.8.1988. On 29.12.1988, Petitioner requested the Management to review the entry in the Confidential Report for the said year 1987-88. However, request of the Petitioner came to be rejected vide letter dated 25 1.1989 whereby the Petitioner was informed that the case of the Petitioner has been considered by the Management. By the said letter, Petitioner was informed that his performance was not satisfactory and, therefore, there was no question of expunging remarks made in the Confidential Report for the year 1987-88. As stated hereinabove, ultimately, Petitioner came to be selected and redesignated as an Assistant Engineer with effect from 1.7.1989.
In this Petition, Petitioner seeks, inter alia, a direction against the Respondent No. 1 to expunge the remarks made against the Petitioner in the above Confidential Reports and to appoint the Petitioner to the post of Assistant Engineer with effect from 1.4.1987 and refix the Petitioner in the Pay Scale of Assistant Engineers with effect from 1.4.1987. Petitioner claims that although he has been redesignated as an Assistant Engineer from 1.7.1989, he was entitled to be redesignated as an Assistant Engineer with effect from 1.4.1987 and not from 1.7.1989.
By way of Affidavit in reply filed by the Respondents, it has been pointed out that the State Government passed Resolution on 16.4.1984 issuing certain Orders for restructuring of the Engineering Cadre and particularly with regard to hierarchy of the Officers below the post of Executive Engineer. The effect of the said restructuring of the post below the post of Executive Engineer resulted in classifying the post into Class I, Class II and Class III Cadres. The pay structure in the Respondents Corporation was on par with the pay structure prevailing in equivalent grade in Government. By Resolution dated 5.9.1986, the Junior Engineers in the Corporation who were directly recruited Graduate Engineers and the Diploma Holders who have put in five years of service in CIDCO were automatically to be designated as Assistant Engineers Grade-II. However, it was proposed that the Sub-Engineers who are Diploma Holders and who have completed five years of service as Sub-Engineers and who have satisfactory record during the last three years of service may also be included in the new Cadre of Assistant Engineer Grade-II as has been done in the case of the employees of the State Government and for that purpose, a Selection Committee was constituted to go into the merits of the work of each Sub-Engineer having the qualifying service of five years. The said Selection Committee consisted of Chief Administrative Officer and the Additional Chief Engineer. The Committee was to assess the performance of Sub-Engineers in accordance with the Confidential Records of the preceding three years. At this stage, the hierarchy of the various posts in the Engineering Cadre before 5.9.1986 and after 5.9.1986 is reproduced hereinafter.
Hierarchy before 5.9.1986
Chief Engineer
Additional Chief Engineer
Superintending Engineer
Divisional Engineer
Assistant Engineer
Junior Engineer
Sub-Engineer (395-15-1500-20-700)
Hierarchy after 5.9.1986
Chief Engineer and General Manager Technical
Additional Chief Engineer
Superintending Engineer
Executive Engineer
Assistant Executive Engineer
Assistant Engineer (600-30-750-40-950)
According to the Affidavit filed by the Respondents, the Committee was of the view after considering the Petitioner''s record in the meeting held on 18.8.1987 that the Petitioner''s name ought not to be included in the list of persons to be redesignated as Assistant Engineers. However, in terms of the said Resolution, the Committee again met on 25.8.1988 for considering the names of eligible Sub-Engineers to be included in the Cadre of Assistant Engineers. Once again the Petitioner''s case was considered by the Depart mental Selection Committee. Once again the Petitioner''s name was not included. However, on 11.7.1989 in the third meeting of the Departmental Selection Committee, Petitioner was found fit for inclusion as an Assistant Engineer and accordingly the Petitioner has been appointed as an Assistant Engineer from 1.7.1989. At this stage, it may be mentioned that the very rationale of the above Resolution was to gradually abolish the Cadre of Sub-Engineers, keeping in mind the restructuring of the Engineering Cadre on the lines of the Government Resolution as applicable to the employees of the State, Accordingly, redesignation work stood carried out pursuant to the Resolution of the State Government dated 16.4.1984. It is also pointed out that Departmental Selection Committee Recommended only those Sub-Engineers whose performance for preceding three years as reflected in Confidential Records was found to be satisfactory. In the Affidavit in reply the Respondents have categorically denied the case of the Petitioner that the Petitioner was entitled to be automatically redesignated to the post of Assistant Engineer. As regards the petitioner''s case that the adverse remarks in the Confidential Report in 1985-86 and 1986-87 are concerned, the Affidavit in reply makes it very clear that the said remarks were communicated to the Petitioner. Against the said remarks, the Petitioner made representations which were considered and that the Petitioner''s request for expunging the remarks came to be turned down. According to the Affidavit in reply, under the above circumstances, the Petitioner was not entitled to make grievance that he was not given an opportunity to deal with the adverse remarks. According to the Affidavit in reply, at the relevant time, the Petitioner who belonged to Civil Engineering Cadre in which civil works were carried out through the Contractors, the Petitioner lacked the capacity to get the work done from the employees at the site and in the circumstances there was no question of any subordinate staff in the hierarchy working under the Petitioner or not working under the Petitioner as alleged. It is also pointed out that as far as the Civil Engineering Cadre is concerned, the Executive Engineer is in charge of a particular work at the site where civil works are carried out and, therefore, all the-Officers under the Executive Engineer are under his direct supervision and control. It is further pointed out that Superintending Engineer is the Head as far as the Nodal Department is concerned and, therefore, the Superintending Engineer also exercises full control over the staff of CIDCO in a particular Node and, therefore, it is pointed out that the petitioner''s contention that he was not directly under the control of the Executive Engineer was also not correct. It is therefore pointed out that the Executive Engineer was rightly constituted as the Reporting Officer for Sub-Engineers like the Petitioner. Similarly, it is pointed out that the Superintending Engineer who is the Head of the Nodal Department, was correctly constituted as the Reviewing Authority in respect of the remarks made by the Executive Engineer. In Affidavit in reply, the Respondents have further pointed out that there is no basis to support the Petitioner''s allegations that the Superintending Engineer Mr. Sanghavi wrote the Confidential Reports against the Petitioner without application of mind. According to the Respondents, the remarks in the Confidential Reports indicate general assessment of the employee by the Reporting Officer and the Reviewing Officer. It is further pointed out that as per the Resolution of the Board of Directors of the Corporation, the only candidates whose performance was found to be satisfactory for preceding three years were to be considered for redesignation. It is also pointed out that the Departmental Selection Committee had also considered the case of each of the candidates while recommending their names to the post of an Assistant Engineer. In the above circumstances, the Respondent Corporation has denied the various averments/allegations made by the Petitioner in this petition.
Mr. Bukhari, learned Counsel appearing on behalf of the Petitioner in the present matter contended that, firstly, the Resolution of the Board of CIDCO inter alia provides for redesignation of the posts of Sub-Engineers. He pointed out that only two criteria are laid down, namely, that the candidate should be a Diploma Holder and that he should have put in five years'' service as Sub-Engineer. If these criteria are satisfied then, automatically, the candidate was fit to be appointed to the post of an Assistant Engineer. Mr. Bukhari further pointed out that under the said Resolution, there was no scope for Departmental Selection Committee to consider the Confidential Reports of the candidate. He further pointed out that the criteria would invite the policy of picking and choosing the Sub-Engineers to be appointed to the post of an Assistant Engineers. Mr. Bukhari further pointed out that when the post is required to be redesignated, there was no question of Confidential Reports of last three years being considered, unless, the said post is treated as promotional post. Mr. Bukhari further pointed out that, in the present matter, although the Petitioner has been subsequently redesignated as an Assistant Engineer with effect from 1.7.1989, the Petitioner ought to have been included in the Cadre of an Assistant Engineer from 1.4.1987. Mr. Bukhari further pointed out that, in the present matter, certain candidates who were similarly situated and against whom the remarks were not satisfactory have been promoted even from retrospective date whereas the Petitioner, who had a good record, has been discriminated by introduction of remarks which were not even communicated earlier in point of time and on which the Petitioner was not given proper opportunity to meet the case and in the circumstances Departmental Selection Committee erred in relying upon the adverse remarks for the years 1985-86, 1986-87. Mr. Bukhari further pointed out that, in the present matter, despite several representations, no reply came to be received by the Petitioner with regard to impingement of the adverse remarks and in the circumstances the Petitioner ought to have been promoted to the post of an Assistant Engineer from 1.4.1987 and not from 1.7.1989.
We do not find any merit in the above Petition. As pointed out herein, we are required to consider the present matter in the light of the facts of the present case. The facts indicate that the Engineering Cadre was required to be reconstituted/restructured. It was required to be restructured in the light of the Government Resolution. For that purpose the posts of Sub-Engineers were required to be redesignated as Assistant Engineers Grade-II. However, this was required to be done in the footing that the redesignation should be based on the assessment by Departmental Selection Committee. This assessment. In turn, was required to be based on the Confidential Reports of the Sub-Engineers for the last three years. In the present mailer, therefore, the Court is required to ascertain as to whether Departmental Selection Committee erred in not including the name of the Petitioner in the Cadre of Assistant Engineers in 1987 and 1988. As stated hereinabove, the Petitioners name stood included in the Cadre of Assistant Engineers from 1.7.1989. However, the Petitioner claims that his name should have been included earlier in point of time from 1.4.1987 and it is from this point of view that the contentions of the Petitioner are required to be looked into. Now, in the present matter, Departmental Selection Committee has relied upon the remarks introduced in the Confidential Reports for the above two years. These remarks indicate that the Petitioner was not fit to be appointed as an Assistant Engineer as the Petitioner was not able to take the work from the employees working at the site. It may be that in the hierarchy of the Engineering Cadre there was no post below the post of Sub-Engineer but as pointed out in the Affidavit in reply, as Sub-Engineer, the Petitioner was required to work at the site and at the site he was required to take the work from the employees of the Contractor. It is important to note that when the work is carried out at the site the Executive Engineer is in charge of the site. It cannot be denied, therefore, that as a Sub-Engineer, the Petitioner was working under the supervision of the Executive Engineer and if the Executive Engineer is therefore Reporting Officer who has seen the work of the Petitioner at site as a Sub-Engineer, it cannot be stated firstly that the remarks made in the Confidential Reports to. the effect that the Petitioner did not have adequate administrative capability to take the work from the employees, at the site was unjustified. In any event, this Court is not sitting in Appeal over the said remarks. Further, in view of the above facts, it cannot be stated that the Executive Engineer cannot constitute a Reporting Officer if the work done at site is carried out under the Supervision of the Executive Engineer. Further, CIDCO was entitled to designate the Executive Engineer as Reporting Officer for the purposes of preparation of the Confidential Reports or for the purposes of introducing the remarks in the Confidential Reports of the Sub-Engineer. Similarly, as pointed out by Affidavit in reply, Superintending Engineer is in charge of the Nodal Department and the Superintending Engineer being the Head of the Node has been correctly, therefore, appointed as the Reviewing Officer to review the remarks made by the Executive Engineer. In the above circumstances, we do not find any merit in the contentions advanced on behalf of the Petitioner that the proper Officers under whom the Sub-Engineer works have not been appointed as Reporting Officer so also as Reviewing Officer. As stated hereinabove, therefore, Mr. Sanghavi, who was Superintending Engineer has also looked into the matter and has also come to the conclusion that the Petitioner''s ability during the relevant period to take the work from the Contractor''s employees working at site left much to be desired and in the circumstances during the two years 1987 and 1988, the Petitioner''s name was not included for the post of Assistant Engineer. We do not see, therefore, any arbitrariness in the remarks made in the Confidential Reports of the Petitioner for the aforestated period. One more fact may also be mentioned that, in the present matter, it has been vehemently urged that the Petitioner''s representation made against the remarks has not been considered. We do not find any merit in the said contention. Firstly, as stated hereinabove, the remarks have been made by Reporting Officer. The said remarks have been reconsidered by the Reviewing Officer and further the representation of the Petitioner has also been considered at the highest level as indicated by letter dated 25.1.1989 which indicates clearly that the Petitioner''s representation to the Managing Director was also considered and the Petitioner was categorically informed that his name cannot be included in the list of Assistant Engineers in view of the remarks during the relevant period made in the Confidential Reports. Therefore, the question of expunging the impugned remarks does not arise.
Mr. Bukhari has relied upon various Judgments of the Supreme Court and has submitted that in the light of the ratio of the said Judgments of the Apex Court, the remarks made in the Confidential Reports of the Petitioner ought to be expunged. Mr. Bukhari has relied upon the Judgments in the cases of Amar Kant Choudhary Vs. State of Bihar and Others, , Gurdial Singh Fijji Vs. State of Punjab and Others, . He has also relied upon the judgment of the Supreme Court in the case of Brij Mohan Singh Chopra Vs. State of Punjab, , and he has also relied upon the Judgment of the Supreme Court in the case of State Bank of India etc., Vs. Kashinath Kher and others, etc.,, . It is not necessary to go into the facts of each of the aforestated Judgments. Even upon the law laid down in the above Judgments of the Supreme Court, it is well settled principle that an adverse report in Confidential Roll cannot be acted upon to deny the promotion unless the same is communicated to the aggrieved person. The ratio also lays down that there should be a proper hierarchy of Officers senior to the incumbent in the post, so that proper justice is done to the incumbent. In the present case, as stated hereinabove, we have to apply the ratio of the Apex Court in the above decisions to the facts of the present case. As stated hereinabove, the Executive Engineer is the Head of the site where the Project work is carried out. The Sub-Engineer falls under the Executive Engineer. Therefore, we do not see anything wrong in the Executive Engineer being designated as Reporting Officer so also the Superintending Engineer is the Head of the Nodal Department and, therefore, we do not see any error on the part of the Corporation in designating the Superintending Engineer as Reviewing Officer. Similarly, on the facts of the present case, the remarks made in the Confidential Reports at the relevant time show that they were made by the Competent Reporting Officer and they were considered by the Reviewing Officer and, moreover, the representation made to the Management was also placed before the Management and it was turned down. Therefore, even the opportunity was given to the Petitioner and in the circumstances, on the facts and circumstances of the present case, we do not find any arbitrariness in the Petitioner''s name not being included for the post of Assistant Engineer. Moreover, the Petitioner''s case was duly considered in 1989 and the Petitioner''s name stood included for the post of Assistant Engineer from 1.7.1989.
Taking into account the facts and circumstances of the case, therefore, we do not find any merit in the Petition. Writ Petition fails. Rule is discharged. However, in the facts and circumstances of the case, there will be no order as to costs.
Issuance of certified copy is expedited.