J. S. VERMA, C. J. - (1.) THE question referred to this Bench for decision is the following: - "whether an adverse entry in the Annual performance Appraisal Report of the Government Servant will fall under Clause (v) of Sec. 2 (f) of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 and the Service Appellate Tribunal will have jurisdiction to entertain an anneal in the matter?"
(2.) THE occasion for making this reference arose when the Division Bench before which this petition came up for hearing was inclined to take the view that an adverse entry in the Annual Performance Appraisal Report of a government servant tails within the ambit of sub-clause (v) of clause (f) of Section 2 of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act 1976 (for short 'the Act' ). This was also the view of an earlier Single Bench in the State of Rajasthan V. Narendra Singh Verma (1), but a contrary view was taken by another Division Bench in Dr. Dinesh Mathur V. Rajasthan Civil Service Appellate Tribunal, Jaipur (D. B. Civil Writ Petition No. 67 of 1984 decided on May 10, 1988 ). Accordingly, this reference was made to settle the controvert on the point. A brief reference to the object of enacting the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 and its silent features would be appropriate. Prior to this enactment and constitution of the Rajasthan Civil Services Appellate Tribunal thereunder the remedy of the aggrieved Rajasthan State government servant was to approach the civil court by a suit and the High Court or Supreme Court by a writ petition in respect of a 'service matter' as defined in section 2 (t) of the Act. The object of this enactment and constitution of the Tribunal thereunder is to substitute the forum of the Tribunal in place of the ordinary courts constituted under the general law for redressing these griev-ances of the State Government servants. It is in this back ground that the defini-tion of 'service matter' contained in clause (f) of section 2 of the Act has to be understood. Obviously the intention is to substitute the forum of the Tribunal under the Act for the ordinary civil courts only in respect of the service matters falling within the definition contained in section 2 (f ). Any matter which ordinarily was not taken to courts of general jurisdiction prior to this enactment is not expected to be provided for in this Act. Any matter falling outside the ambit of 'service matter' defined in section 2 (f) would be outside the purview of the Art and jurisdiction of the Tribunal constituted under the Act will not extend to it The definition of 'service matter' in section 2 (f) is given by specifying certain matters in sub-clauses (i) to (vii) and making residuary provision in sub-clause (viii) by including any other matter notified by the State Government This residuary provision itself indicates that the matters specified in sub-clauses (i) to (vii) are not exhaustive of all matters relating to the service of a government servant in respect of which he may have a grievance Exclusion of penalties in sub clauses (v) to (vii) is also a similar indication. Sub-clause (viii) enables the State Government by a notification to include any other matter relating to a government servant which is not covered by sub-clauses (i) to (vii ). This indicates that there is no need to strain the language of any part of sub-clause (i) to (vii) to include any matter relating to a government servant if it does not appear to be included within it according to the plain meaning of the language. It is open to the State Government to include it by a notification to bring it within clause (viii ). Otherwise the remedy in the courts of general jurisdiction, if any, continues unimpaired because the matter is not within the ambit of the Act. Section 3 of the Act provides for constitution and composition of the Tribunals; sections 5 to 8 deal with ancillary matters; section 9 provides limitation for appeals to the Tribunal; and section 10 lays down the bar of jurisdiction of the civil courts by providing that no suit or other proceedings shall be entertained in any civil court with respect to any matter arising under or provided for by this Act. This is the usual exclusionary clause barring the jurisdiction of the civil courts in respect of the matters covered by the Act. Section 11 provides for the pending cases being continued in the civil courts and section 12 contains the Government's Rule making power. Section 2 (f) defines 'service matter' as under: - "2. Definitions. In this Act, unless the subject or context otherwise requires, - xxx xxx xxx xxx xxx (f) "service Matter" means any one or more than one of the following matters relating to a Government servant: - (i) Seniority; (ii) Promotion; (iii) Confirmation; (iv) Fixation of pay; (v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government servant, otherwise than as a penalty; (vi) Cases of reversion while officiating in a higher service, grade or post to lower service grade or post otherwise than as a penalty; (vii) Withholding the pension or denying the maximum pension otherwise than as the penalty; (viii) Any other matter notified by the Government. "
(3.) IT is clear from this definition as earlier indicated that only the matters specified in sub-clauses (i) to (vii) and those notified by the Government under sub-clause (viii) fall within the definition of 'service matter'. If the intention was to define 'service matter' to include every grievance of a government servant relating to his service, then instead of the method used of specifying expressly some matters and excluding penalties in sub-clauses (v) to (vii) the easier course of saying that a service matter means and includes every matter or incident relating to the service of a government servant would have been adopted. Subclause (viii) would be superfluous unless this view is taken. The power given to the State Government in sub-clause (viii) can be exercised only if there are matters relating to service which are not included in sub-clauses (i) to (vii ). IT is necessary to bear in mind this fact while construing sub-clause (v) in respect of which the controversy has arisen. The question now is, whether an adverse entry in the Annual Performance Appraisal Report of a Government servant is a 'service matter' included within sub-clause (v) of clause (f) of section 2 of the Act. There is no denying the fact that an adverse entry in the Annual Performance Appraisal Report of a Government Servant is significant to determine the future course of the Government servant's service career. This is so because it is material for deciding whether he is fit to cross the efficiency bar, earn future increment in the pay scale, be confirmed in the cadre which in turn would also affect the fixation of seniority; and be promoted to a higher post. It cannot, therefore, be doubted that such adverse entry is a matter relating to and an incident of the service of a Government servant and the Government servant can be aggrieved by the adverse entry which may determine his future in the service. It is equally true that the Government servant who is aggrieved by such adverse entry must have an opportunity to assail it if it affects his prospects in the service. It is for this reason that an adverse entry cannot be relied on unless it has been communicated to the Government servant and he has been given an opportunity to make a representation against the same, and the representation has been duly considered and decided. When the representation is accepted, no grievance survives because the adverse entry is expunged. However, when the representation is rejected, it would adversely affect the future prospects of the Government servant and, therefore, he should be able to assail it, if so advised, before an independent forum. Obviously, it is for this reason that an attempt has been made to invoke the jurisdiction of the Tribunal for this purpose by construing sub-clause (v) of clause (f) of section 2 of the Act to include such an adverse entry within its ambit. This argument is also influenced by the apprehension that unless such construction of section 2 (f) (v) is made, the government servant will have no remedy to assail such an adverse entry after rejection of his representation by the administrative superiors. In our opinion, even though sub-clause (v) of clause (f) of section 2 cannot be construed to include such an adverse entry within its ambit yet the disastrous consequence of non availability of any remedy from such a construction does not follow. We shall first mention our construction of sub-clause (v) of clause (f) of section 2 and then deal with its effect. In order to fall within the ambit of sub clause (v) it should be a matter relating to a government servant pertaining to 'an order denying or varying' any of the matters specified thereafter 'to the disadvantage of a government servant'. In other words, the grievance of the government servant should be against 'an order denying or varying. . . . to the disadvantage of a government servant' his 'pay, allowances and other service conditions'. It is the meaning of expression 'other service conditions' in this context which has to be found to ascertain whether an adverse entry in the Annual Performance Appraisal Report is within the ambit of this expression. In our opinion, the qualifying expression 'an order denying or varying. . . . . . to the disadvantage of a government servant' clearly indicates that such an adverse entry cannot be included within the expression 'other service conditions' used in this context. The reason is obvious. Such an adverse entry or rejection of representation against it by itself is not an order denying or varying any service condition to the disadvantage of a government servant even though the consequence thereof in future may be so. Sub-clause (v) refers to an order which by itself denies or varies to the disadvantage of a government servant any of the matters specified therein and not an order which may in future result in such a consequence by providing basis for a subsequent order which has that effect. ;