- (1.) From the facts of the case, it is apparent that the letters dated 08.10.2004, 01.07.2004 and 29.10.2004 under the hand of the Executive Engineer were the foundation for the adverse entry in the petitioner's Annual Performance Appraisal Report (APAR) of 2005-06.
(2.) Mr.Ashwini Jaiman counsel for the petitioner submitted that for one, all the aforesaid three letters pertained to the financial year 2004-05 and could not be reckoned for an adverse entry in the petitioner's APAR of 2005-06. The said letters if at all communicated to the petitioners would be relevant for the APAR of 2004-05 which was evaluated as average and with which the petitioner has no quarrel. Mr.Ashwini Jaiman submitted that aside of the aforesaid the petitioner sought a copy of the aforesaid three letters from the respondent-JVVNL under the Right to Information Act, 2005 (hereinafter 'the Act of 2005'). Thereon the Secretary, Administration and Public Information Officer JVVNL by letter dated 20.06.2017 informed the petitioner that the three letters were not available in JVVNL's office and hence copies thereof as applied for could not be supplied. Counsel for the petitioner relied upon the judgment of the Apex court in the case of Union of India and Others Versus E.G. Nambudiri (1991) 3 SCC 38 to submit that adverse remarks in the APAR of the employee cannot sustain or be upheld when challenged without their being any material on record to support such adverse remarks. Mr.Ashwini Jaiman submitted that the representation against the adverse remarks in the petitioner's APAR of 2005-06 made following the liberty granted by the court vide its order dated 28.04.2017 in SBCWP No.13776/2009 at the petitioner's instance has also been mechanically and arbitrarily dismissed vide the impugned order dated 20.09.2017. Mr.Ashwini Jaiman submitted that in rejecting the petitioner's representation against the adverse entries in the APAR of 2005-06 following the liberty granted by the court the competent authority has misdirected itself in emphasizing the earlier rejection of the representation against the APAR of 2004- 05 vide order dated 19.12.2007 without discharging its obligation under the court's direction to consider the representation against the adverse APAR of 2005-06 afresh. The respondents in rejecting the petitioner's representation failed to justify as to how when despite the letters dated 08.10.2004, 01.07.2004 and 29.10.2004 the petitioner's APAR of 2004-05 was rated average, he could on the same material be visited with adverse entry in the APAR of 2005-06.
(3.) Mr.Shailesh Prakash Sharma counsel for the respondent- JVVNL has not been able to satisfy this court as to how the letters dated 08.10.2004, 01.07.2004 and 29.10.2004 all between 2004- 05 could be relevant by the petitioner's APAR of 2005-06 and how when despite the three letters above, receipt of which the petitioners denies and the respondent-JVVNL agrees on non- availability in its record in its reply dated 20.06.2017 to the petitioner's application under the RTI Act of 2005, an adverse entry on the same material without more could be made in 2005-06. Counsel for the respondent-JVVNL is also not in a position to satisfy this court that the letters were served on the petitioner as no proof of receipt even following the petitioner's denial has been filed. Contrarily as redcorded above on the petitioner's RTI application to be furnished copies of the said letters, JVVNL has stated in reply thereto that such letters were not available with it. Mr.Shailesh Prakash Sharma however submitted that the rejection of the petitioner's representation against the adverse entry in his APAR of 2005-06 vide the impugned order dated 20.09.2017 is based on a similar representation having been earlier dismissed on 19.12.2007 as also the fact that the reviewing authority qua the petitioner's APAR of 2005-06 had recorded in his letter of 22.01.2007 that the petitioner had not shown improvement on the matters earlier brought to his notice.;