Judgment:
Sudhir Agarwal, J.
1. The petitioner is aggrieved by non-grant of super time scale with effect from 1.3.1995 and also the adverse entry recorded for the year 1994-95 communicated to the petitioner vide letter dated 19.6.2000 (Annexure-6 to the writ petition).
2. The petitioner was working as Branch Accountant in U.P. Sahkari Gram Vikas Bank Limited. For the year 1994-95, it appears that he was granted an adverse entry by Reviewing Officer which was communicate to him by the District Manager, U.P. Co-operative Rural Development Bank Ltd., Lucknow requiring him to submit representation if any. By another order dated 19.6.2000, he has been informed that due to adverse entry recorded for the year 1994-95, he could not have been granted super time scale fell due on 1.3.1995.
3. Learned Counsel for the petitioner assailed the order dated 19.6.2000 as also the adverse entry communicated to him by letter dated 9.5.2000, primarily on the following two grounds:
(1) Communication of adverse entry after almost five years is illegal and, therefore, it cannot stand in the way of the petitioner for consideration of his case for promotion or grant of higher pay scale etc. in view of law laid down by the Apex Court in State of Haryana v. P.C. Wadhwa and Ors. : 1987 (2) SCC 602.
(2) The super time scale fell due to the petitioner on 1.5.1995 and till then there was no adverse entry existing in the service record of the petitioner. An entry which came to see the light of the day subsequently cannot be made basis to deny him higher pay scale which fell due in earlier point of time.
4. Sri Siddiqui, learned Counsel for the respondents, on the contrary, submitted that the petitioner's performance was not satisfactory. The grant of super time scale is not automatic but depends upon the satisfactory service. Since the petitioner was awarded an adverse entry, when his matter was taken up for consideration for grant of super time scale, the authorities having considered the said adverse entry for the year 1994-95 are well justified in refusing to grant super time scale to the petitioner. He further submitted that mere delay in communication of adverse entry would not vitiate the same. He also submitted that the super time scale fell due to the petitioner on 1.3.1995 and the adverse entry for the year 1994-95, i.e., for the period from 1.4.1994 to 31.3.1995 was recorded within a very short time from the date the super time scale fell due and, therefore, the authorities were justified not to grant the same.
5. I have considered the rival submissions as also the authorities cited at the bar in support of the above submissions.
6. The first question needs to be answered is whether an adverse entry which has been communicated after a long time, i.e., after five years or more can validly be taken into account for passing an order adverse to an employee concerned; for the delayed communication would nullify the effect of the adverse entry.
7. The purpose and object of giving or awarding annual confidential report is to place on record, the performance of the employee as judged by the superior officers, which would provide a basic data/material to the successors in office whenever an occasion would arise to consider the employee for further advancement in his carrier. Normally, such assessment of work and performance recorded by the higher authorities every year is cross-checked at one or two level higher also to avoid the possibility of any individual bias or prejudices of the immediate higher officer. However, where the assessment of the work and performance in a particular year is found to contain some adverse entry, observation which is likely to mar the further prospects of the employee for career advancement, in administrative law, it has been conceived and that has been followed by the courts of law in India that such adverse entry/observations which are commonly known as adverse remark must be communicated to the employee concerned giving him an opportunity to place his version also and, thereafter, the authority may reconsider its remark. Another facet of communication of adverse remark is to give the employee concerned an opportunity to improve his performance or conduct as the case may be. The intention is not to treat the adverse remark on its own as a punishment but the object is that if the adverse remarks are actually not found on some local prejudices etc. but have been made with a bona fide motive and remain sustained, the concerned employee may get cautious and try to improve upon himself his conduct, character and performance, as the case may be. In other words, it can be treated as an advice given by the higher authorities suggesting to take steps in improvement of his performance etc. Viewing from the above angle, if the adverse remark is communicated after a long time, the very object and purpose of its making and communication would disappear. Further by the time gap, if some good or higher category of entries have been earned by the employees concerned, it would be extremely harsh and unjust to adversely affect the career prospects of such an employee based on an adverse entry which has not been communicated to the employee concerned within time or within a reasonable time but kept on the record of the department for years together and then chose to communicate him later on.
8. In the present case also, it cannot be doubted that after 1994-95, the petitioner must have got his A.C.Rs. awarded for the years 1995-96, 1996-97, 1997-98, 1998-99 and it is not the case of the respondents that those reports are adverse in any manner. If that be so, it would be highly unjustified if the effect of an adverse entry can be allowed to sustain after a long time particularly when it was not communicated to the employee concerned within a reasonable time and has been communicated after a long period, as the case in hand, after five years.
9. In my view, the observations of the Apex Court in P.C. Wadhwa (supra) are apt to apply in the facts and circumstances of this case. Therein, the Apex Court, while dismissing the appeal of the State of Haryana, observed as under:
The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially.
Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent.
10. In my view, even if mere delay in communication may not result in justifying its quashing by the Court, it would be strictly in accordance with law to hold that such highly belated adverse entry should not and cannot be taken into account for denying promotion or higher pay scale to an employee if prior to communication of such adverse entry, the employee concerned has further earned some good entries.
11. Coming to the second aspect of the matter as to whether for grant of selection grade to the petitioner which fell due on 1.3.1995, the entry of 1994-95 could have been considered or not, I find the answer in favour of the petitioner. It is not in dispute that the super time scale fell due on 1.3.1995. The period of A.C.R., which had completed by then and was available to be considered was upto 1993-94. It is not disputed that till then, there was no adverse material against the petitioner. The record shows that the petitioner's efficiency bar fell due on 1.1.1994 and the same was allowed to be crossed vide order dated 3.6.1994 considering the preceding three years' entries which were favourable to the petitioner. An entry subsequent to the period his matter of higher scale or promotion came to be considered before the authorities, in my view, could not have been taken into consideration. When something fell due to an employee on a particular date, the entitlement of the employee is liable to be considered on the basis of the material as it was available on that date. The subsequent material would be extraneous unless permitted by some express statutory provision. No such existence of statutory-provision entitling the respondents to consider subsequent entries has been placed before the Court.
12. In these circumstances, the order dated 19.6.2000 denying super time scale to petitioner fell due on 1.3.1995 cannot sustain.
13. The writ petition is, accordingly, allowed. The order dated 19.6.2000 (Annexure-6 to the writ petition) is hereby quashed. The respondents are directed to consider the petitioner for grant of super time scale fell due on 1.3.1995 in accordance with law and the observations made above within' a period of two months from the date of production of a certified copy of this order. In ease, the petitioner is found entitled for the same, he shall be given all consequential benefits and arrears of salary without any further delay, and in any case, not later than four months- after consideration of the petitioner's case as directed above.
14. No order as to costs.