IMPORTANT POINT
Adverse remarks lose significance if the employee is promoted based on merit, and the last five years' remarks in the service book should be considered for promotion. Delay in affirming adverse remarks and the principles outlined in Circular 84 of the Gujarat Police Manual are relevant in determining entitlement to promotion and higher grade scale.

JUDGMENT :

1. By way of present petition, under Articles 14, 16 and 226 of the Constitution of India, the petitioner has challenged inaction on the part of the respondents and prayed, inter alia, that :-

"A) Quashing and setting aside the memo dt.30.1.2012 and directing the Respondents to reconsider the case of the petitioner for grant of second higher grade scale w.e.f 7.2.2004 and every year thereafter till the year 2007 by applying the criterion as explained in this petition, and to pay the arrears with 10% interest.

B) During the pendency and final disposal of this petition, Respondent No.2 may be directed to reconsider the case of the petitioner for higher grade scale from 7.2.2004 by applying correct criterion.

C) To grant such and further relief as may be deemed fit and proper."

2. The facts giving rise to present petition are that the petitioner was serving as 'Head Clerk' in the office of respondent No 4. The petitioner was appointed as 'Junior Clerk' on 21.12.1979 and then promoted as 'Senior Clerk' on 4.6.2003. The petitioner was given the deemed date of promotion of Senior Clerk as 8.11.1992. Lastly the petitioner was promoted to the post of 'Head Clerk' on 7.12.2010. The petitioner was granted the first higher grade scale from 7.2.1989 as per the Government Resolutions dated 5.7.1991 and 16.8.1994.

2.1 As per Government Resolution dated 2.7.2007, the petitioner became eligible for second higher grade scale from 7.2.2004, i.e. after completion of 15 years after grant of first higher grade scale. However, by the order dated 20.2.2010, the petitioner was granted the second higher grade scale from 1.4.2007.

2.2 By the letter dated 14.2.2011 the petitioner had requested Respondent No.2 to grant her the second higher grade scale from 7.2.2004. However, by the memo dated 30.1.2012, the petitioner was informed that the Departmental Promotion Committee had decided to grant the second higher grade scale from 1.4.2007 taking into consideration the Annual Confidential Report of the petitioner.

2.3 It is true that there was an adverse remark in the A.C.R of the petitioner for the year 2001-2002 to the effect that she was "irregular in attendance ". The said adverse remark was communicated to the petitioner but she has lost the same. She did not make any representation against that adverse remark within the prescribed time limit. On coming to know that the petitioner has not been granted the second higher grade scale from the due date on account of the above adverse remark in the Annual Confidential Report, by the letter dated 20.2.2010 she requested for a copy of the adverse remark for the period from 1.4.2001 to 31.3.2002 under the R.T.I Act.

2.4 By the letter dated 11.3.2010, the said information was refused. As stated above, the petitioner has lost the letter communicating the adverse remark. The adverse remark has been confirmed by the respondent no.2 as stated in the order dated 29.6.2009. Against the above order dated 25.11.2008, the petitioner made the representation dated 8.12.2008, but nothing was heard in the matter.

2.5 In view of the above, by this petition, the petitioner has challenged the memo dated 30.1.2012 as being illegal, arbitrary, unreasonable and in violation of Articles 14 and 16 of the Constitution of India.

3. Heard Mr. Abhisst Thaker, learned Counsel for the petitioner and Mr. Aditya Jadeja, learned Assistant Government Pleader for the respondents.

4. Mr. Abhisst Thaker, learned Counsel for the petitioner has relied upon an additional affidavit-in-rejoinder filed by the petitioner and reiterated the averments made in the petition and submitted that the adverse entry was posted for the years 2001 to 2002, however, considering the last five year's remarks in the service book, she was promoted in the year 2003 by the department and also granted the benefit from the deemed date, for which she is entitled and once she received the promotion for the higher post i.e. "Senior Clerk" the adverse entry posted in the serv