Rajasthan High Court - Jaipur
Ram Avtar Khandelwal vs High Court Of Judicature For Rajasthan ... on 3 July, 1992
Equivalent citations: 1992(2)WLC587, 1992(2)WLN602
JUDGMENT Farooq Hasan, J.
1. The petitioner seeks two fold reliefs in this writ petition, viz. (i) for quashing an adverse remark in his annual confidential report for the year 1983 conveyed to him vide Annexure 5, dated September 13, 1989, and (ii) for promoting him to the post of Civil Judge-cum-Addl. Chief Judicial Magistrate from the date his juniors were so promoted, with all other consequential benefits.
2. Undisputed facts are thus. The petitioner was appointed as Munsif & Judicial Magistrate and was confined. Vide order (Ann. 3) dated August 3, 1989, six judicial officers holding posts of Munsif & Judicial Magistrate, namely, Shiv Dayal Gupta, M.A. Siddique, Om Prakash Sharma (II), Naresh Chandra Rawat, Narain Das Bilcchi, Chandra Prakash Singh. Out of whom last four persons are admittedely juniors to the petitioner, were given promotion to the post of Civil Judge-cum-Addl. Chief Judicial Magistrate, and against that, the petitioner made his representation vide Annexure 4 dated August 8, 1989. & Vide Annexure 5, dated September 13, 1989, the petitioner was communicated the adverse remarks made in his Annual Confidential Report for the year 1983 as under:
Itegrity highly doubtful. He is notfair and impartial in dealing with the public and the Bar. His public appearances at Weir were most condemnable. Relations with the Bar not cordial. The Bar at Weir passed unanimous resolutions against his way or working & integrity. He indulged in cheap-politics at Weir. He was found quite indisciplined-insubordinate. he even could go to the extent of inciting his subordinate to rise in revolt against hislthelr officer. Integrity certificate for period from Jan 83 to July, 1983 was with held.
3. Against these observations, the petitioner had sent his representation (Annexure 6), dated September 27, 1989 but his representation was rejected and rejection was communicated to him vide letter dated January 27, 1990 (Annexure 7).
4. First plunk of attack by the petitioner is that it is a case of delayed communication of annual confidential report (ACR) because, the impugned adverse remarks for the year 1983 has been communicated in the year 1989, and on this ground alone, the impugned remarks are liable to be expunged. In suport of the contention, two decisions of the Apex Court have been relied upon, viz. Baidyanath Mahapatra v. State of Orissa , and State of Harayana v. P.C. Wadhwa .
5. No explanation whatsoever has been given as to the delayed communication either in reply to the writ petition or during the course of arguments, by the learned Counsel for the respondent.
6. In State of Harayana v. P.C. Wadhawa (supra), there was a delay of 27 months in communicating adverse remarks to the affected officer and it was a case where Rules 5, 6, 6-A & 7 of All India Services (Confidential Rolls), Rules, 1970, (according to it, perilod of seven months for communication was provided) were held to be directory but it has been laid down that it required to be substantially complied with, and delayed compliance was held to be not substantial compliance. In these circumstances, the delay of 27 months was held as incordinate and it was not approved.
7. In Baidya Nath Mahapatra v. State of Orissa (supra), the adverse entries for the years 1969-70, 1970-71, 1972-73 and 1975-76 were communicated in a lot to the affected officer in 1978, and there was service code contemplating a period to communicated the adverse entries, but, according to their Lordships, belated communication of the entries has resulted in denial of reasonable opportunity to the affected person to improve his performance.
8. Lending support from the decisions, referred to above, I may observe that the purpose of communicating adverse entries to the government servant is to inform him regarding his deficiency in work and conduct and to afford him an oppoprtunity to make, amend, and improve his work and further if the entries are not justified the communication affords him an opportunity to make representation, and if the entries adversely made against a government servant are communicated to him after several years, the object of communicating entries is defeated.
9. In the case at hand, the adverse entry no doubt pertains to the period January 1983 to July, 1983 having been made in his ACR by his reporting officer, Shri M.A.A. Khan as District Judge, and it has been communicated on September 13, 1989after a delay of six years. It is not the case of the respondent that after 1983 also, the adverse entries were made. According to the return filed by. the respondent, there is merely a denial to the contention of the petitioner that his past service records were good. Even, ithas been stated therein that there was a report of Shri M.A.A. Khan on a complaint made by the President Bar Association, Weir and that report was brought to the notice of Hon'ble the then Chief Justiceon 1.3.1985. But, curiously enough, what has been considered and ordered upon the report of Shri M.A.A. Khan, by the Chief Justice, is not placed on record nor seems to have been communicated to the petitioner. Thus, in my view, the impugned adverse entries were not communicated within a reasonable period rather it is a case of belated communication of the entries resulting in denial of opportunity not only to improve his work and conduct but also to make an effective representation against the same. And, the whole object of making of adverse remakrs had lost because they were communicated after an inordinate delay. Moreover, since there isnothing material on record that there were also adverse entries in his ACRS for the years subsequent to 1983,having been communicated to him by the respondent, the petitioner can reasonable be assumed to have proved himself to be improved in his service career. Further, the adverse remarks in the circumstances, cannot be understood in terms of punishment, as held in State of Haryana v. P.C. Wadhwa (supra).
10. As to the correctness of the remarks in question which have been assailed, Shri R.D. Rastogi has urged that there was no material on the basis of which an opinion could be formed against the petitioner so as to recorded adverse remarks, as had been recorded for the year 1983 (January to July, 1983). From the reply filed on behalf of the respondent, it is not borne out as to what was material on the basis of which the reporting officer (Shri M.A.A. Khan) formed his opinion against the petitioner recording adverse remakrs (as stated in Annexure 5) for the year 1983 (upto July, 1983). As stated earlier, the only thing which has been given out in the reply by the respondent is that a complaint was made by the President Bar Association Weir to the High Court which, directed the District Judge (Shri M.A.A. Khan) to enquire into the matter and who had also sent his report and this report was brought to the notice of the Chief Justice on 1.3.1985. But, as observed above, neither any report of the District Judge nor the order passed thereupon by the Chief Justice either on 1.3.1985 or subsequently, has been produced or shown to this Cort. As against this, in the rejoinder filed by the petitioner, it has been stated that no copy of the said complaint had been given to him nor he had been heard as against the assertions made in the said complaint, nor any adverse remarks if any had it been against him resulting into any order affecting his right, have been communicated. Highlighting these facts and circumstances, Shri R.D. Rastogi contended that such complaints not supported by any conclusion against the petitioner cannot be made use of unless he has been afforded an opportunity to rebut such assertions made in the complaints. There is no material in the reply to show as to what material has been considered or made basis by the reporting officer for recording the impugned adverse entries against the petitioner.Further, as held in M.C. Tauylor v. High Court of Judicature for Rajasthan 1991 (1) RLR 143 which was also a case of adverse entries recorded against the Judicial Officer like the petitioner, in such matters when the plea advance in support of the remarks is that the remarks were recorded on the basis of the assessment of the Reporting Officer, the Committee considering the representation of the petitioner against his adverse entries in question, ought to have first called upon the comments of the Reporting Officer and, had the committee taken that trouble to call for the comments of the reporting officer, the reporting officer would have been in a better position to inform the Committee with regard to the material on the basis of which he had formed the opinion so as to give these remarks and he could have said something in support of the remarks to justify the same. In the case of the petitioner, no extract copy of the report of the Committee which considered the representation of the petitioner has either been furnished to the petitioner who according to him even was not informed/known as to who had given consideration to and rejected his representation and as to what reasons have been assigned while rejecting his representation and as to what material has been considered while doing so, nor it has been placed on record and shown to this Court during the course of arguments so as to justify their assertions made in the reply. There is no material in the reply or its affidavit to show that the Committee considering the representation of the petitioner has called for the comments of the reporting officer. Thus, it is clear that the petitioner's representation was considered by the Committee without even clling for the comments of the Reporting Officer. I may add that the Committee had nothing before it except the petitioner's representation and the bare remarks of the Reporting Officer, assailed here. Therefore, while adopting from the decision in M.C. Taylor's case (supra), such a consideration of the representation against adverse remarks without even calling for the comment of the reporting officer does not amount to a real and effective consideration. In this state of affair, Committee and to decide the representation de novo after calling for the comments of the reporting officer but, as pointed out above, in the case at hand, the adverse remarks for the year (Jan to July, 1983) were conveyed as late as September 13, 1989, i.e. after a period of nearly six years and the representation was rejected and communicated on January 27, 1990, and thereafter, after four months, the petitioner has already been promoted as Civil Judge & Addl. Chief Justice Magistrate. In these circumstances, it is clear that the High Court itself has treated these adverseremarks to be a advisory natue only. Thus viewed, when the adverse remarks have otherwise also lost their importance in view of the inordinate delayed communication of the entries, and lack of any material shown on which basis the opinion was formed to record adverse entries, and further on account of denial of reasonable opportunity to the petitionr so as to make an effective representation, it will now be an exercise in futilityto send the matter back to the Committee to consider the petitioner's representation de novo afte calling for the comments of the Reporting Officer as on the basis of the existing record and the pleadings, of the parties, in my view, the impugned remarks had been recorded against the petitioner in the absence of any material to form the requisite opinion against him. The remarks cannot be sustained.
11. Let me advert to the second relief Mr. R.D. Rastogi contended that junior persaons to the petitioner have been promoted supreseding him without any justification and material on record, inasmuch as when the order promoting juniors to the petitioner was passed and when the candidature of the officers were taken into consideration, till then neither any adverse remarks head been communicated to the petitioner nor was there any inquiry pending nor any complaint against him. Highlighting these circumstances, Shri R.D. Rastogi argued that even the adverse entry for the year. 1983 (Jan to July, 1983) has been communicated after his supersession and therefore, even if there was an adverse entry against the petitioner, it could not have been acted upon so as to disentitle him for any promotion as it was conveyed subsequent to the promotion.
12. It is borne out from the reply of the respondent that admittedly the judicial officer named at S. No. 3 to 6 were juniors to the petitioner; no adverse remarks or complaint allegedly made against him or any order adversely passed thereon were communicated to the petitioner prior to the consideration of his case for promotion and promoting the aforesaid junior judicial officers, inasmuch as the alleged adverse remarks of the preceeding year, 1983 was communicated as late as on September 13, 1989 after inordinate delay of six years and after the promotion order (Annexure 3) was passed finding the petitioner not suitable for promotion without any material adversely communicated to him.
13. I find no counter to the assertion of the petitioner on record that the recommendations of the Committee which considered the representation of the petitioner, have not been placed before the Full Court while the cases of judicialofficers for promotion to the post of Additional Chief Judicial Magistrate were being considered. As stated earlier, there is merely a denial to the assertion of the petitioner that his past service records except the A.C.R. of 1983 were good. Nothing has been brought on record to show that A.C.Rs for which of the years were not good. Had there been any adverse entries against the petitioner, it is surprised why those entries were not communicated alongwith the communication of the remarks for the year 1983 in the year 1989, also. It can, therefore, reasonably be presumed that there was no adverse thing except remarks in question for the year 1983, atleast upto 1989 when the candidature of the petitioner for promotion is said to have been considered. There is bald allegation that superior courts had found on more than one occasions that the judgments delivered by the petitioner as Presiding Officer were not upto the mark, and at times his judgments were marked below standard. But, here again, there is lack of material to whow that on the basis of these remarks as to the quality of the judgments delivered by the petitioner, any adverse entry has been made in his A.C.Rs. for any particular years or had those been communicated to the petitioner. Had there been any such thing, then it is surprised whey the reporting officer has not made any adverse remarks in the A.C.Rs.of the petitioner. Even from the impugned adverse entries, for the year 1983, it is borne out that there is no remark as to the quality of the judgment. There is no counter affidavit on behalf of the respondent that judgments delivered by the petitioner as Judicial Officer which are said to have been marked below standard were placed on record while his case for promotion was being considered and whether on the basis of any such below standard judgments, any adverse entry has ever been made in the A.C.Rs either by the District Judge, reporting Officer or by the Chief Justice. Thus, there is no material to sustain the plea that at limes judgments delivered by the petitioner were marked below standard. The petitioner has denied to have received any communication as to the quality of his judgments, mere admonishing that too has been denied by the petitioner to have been communicated to him in his rejoinder, it is settled law, cannot be sufficient to debar the petitioner for his promotion, as admonition is not a punishment.
14. Then remains only adverse remarks for the yearl983 which pertains to the period prior to the consideration of the petitioner's case for his promotion. Admittedly, these adverse remarks recorded against the petitioner in his A.C.R. for the year 1983, were not only delayedly communicated but also communicated after consideration of his case for promotion. The contention of the petitioner is that even if and otherwise also, these adverse remarks could not be acted upon after passing the order adversely affecting, depriving or curtailing any existing right advantage or benefit of the petitioner which resulted in civil consequences, without complying with the rules of natural justice, because, according to the petitioner, these entries were uncommunicated while his case for promotion was being considered and supreseded and thus after having taken decision for supreseding him for his promotion, he was asked to submit his representation against these entries though it had already been acted upon while superseding him for his promotion, and in his manner, it is a case of post decisional hearing and the post decision/hearing no hearing in the eye of law, as held in H.L. Trehan v. Union of India 1989 (1) SCC 764 and K.I. Shephard v. Union of india 1987 (4) SCC 431 and Gurdial Singh v. State of Punjab AIR 1979 SC 1622.
15. Having gone through the decisions cited (supra) I find that the contention of the petitioner has got merit. In the case at hand, as noted above the adverse entries only recorded in the petitioner's A.C.R. for the year 1983 were admittedly though communicated belatedly after supreseding him for promotion but also acted upon to deny promotional avenue to the petitioner without affording an opportunity to explain the circumstances leading to the report. And, it is a case of post decisional opportunity of hearing but it did not subserve the rules of natural justice because, once a decision has been taken, there is a tendency to uphold it and a representation if any may not yield any fruitful purpose- as has been done in the case of the petitioner. The respondent being embarked upon a post decisional hearing, has in the instant case of the petitioner proceeded with a closed mind and there was no chance of getting a proper consideration of the representation at such a post decisional opportunity. There was no justification to deprive him of the promotion and then given him an opportunity of representation when the requirement is that the petitioner should have the opportunity of being heard against the adverse entries recorded and acted upon against him which had been communicated after decision of his supersession, as a condition precedent to action. Therefore, even any hearing or opporutnity to as a condition precedent to action. Therefore, eveny any hearing or opportunity to make a representation against the entres recorded against him, was given to the petitioner after his supersession and acting upon the adverse entries though not communicated till consideration of the promotio that would not be any compliance with the rules of natural justice or avoid the mischief of arbitriness as contemplated by Article 14 of the Constitution. Thus viwed, the decision of the respondent to supersede the petitioner acting upon the uncommunicated adverse entries without complying with requirements of natural justice was bad and smacks of arbitrary or whimsical exercise of power and such an exercise of power prejudicialfy affecting the existing conditions of service of the petitioner has resulted in offending against the provisions of Article 14 of the Constitution of India.
16. I cannot speculate in the absence of a proper pleading, whether the petitioner was not found suitable otherwise that is to say, for reaons other than those connected with the adverse entry for the year 1983. As noticed above, nothing material has been shown orbrought on record to show as to why and for what reaons the petitioner has been superseded. The only assertion which is borne out from the reply of the respondent is that after due consideration of his case in the light of his service records including A.C.Rs, the petitioner was not found suitable for promotion. As held in Gurdial Singh v. State of Punjab (Supra) that an officer was"not found suitable" is the conclusion and not a reason in support of the decision to supersede him, and according to their Lordships of the Apex Court, the Selection Committee must atleast state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for promotion. In the absence of any such reason, the supersession of the petitioner is bad in law.
17. As is borne out from the material on record and admittedly, just after the impugned supersession and belated communication of the adverse entries, and consideration of his representation against the adverse entries, and rejection of his that representation, only after four months, the petitioner has been promoted to entries for the year 1983 in question, the petitioner has no bad service record throughout his service career atleast after 1983, otherwise he would not have been given promotion after short span of earlier supersession. It is not the case of the respondent that through out his service career, the petitioner has blemished record or that he has not repute. Nothing material has been brought to my notice to show that there were adverse entries against the petitioner and those entries were recorded and communicated to him, so as to supersede him, nor any reasons have been shown which persuaded the Full court to supersede him finding junior officers of exceptional merit and suitability. Therefore, once I have found the supersession of the petitioner as bad in law, and in the absence of a proper pleading and keeping in view the pecuilar facts and circumstances noticed above when the petitioner has been promoted just after a short interval of earlier supersession finding him suitable, I do not deem is justified to send the matter back for consideration of his promotion denovo ignoring the adverse entries which were acted upon while superseding, him without complying with the rules or principle of natural justice, because it will be an exercise in futility. And, the petitioner is entitled to the benefit of promotion from the date his juniors were promoted to the post of Civil Judge-cum-Additional Chief Judicial Magistrate, i.e. dated 3.8.1989.
18. For the reasons stated above, this writ petition must succeed and is hereby allowed with no order as to costs. Since I have come to the conclusion as above that there was no material to form the opinion for giving the impugned adverse remarks against the petitioner inasmuch as these entries have lost its importance for the reasons detailed above, the impugned communication (Annexure 5) dated 13th September, 1989 and rejection of the represenation of the petitioner (Annexure 7) dated 27th January, 1990, are quashed and set aside and the adverse remarks recorded against the petitioner in UK Annual Confidential Roll, 1983 are hereby expunged, as if the same were never recorded. I direct that the respondent should promote the petitioner w.e.f. 3rd August, 1989, when his juniors were promoted vide Annexure 3, restoring his seniority to its original place, to the post of Civil Judge-cum-Additional Chief Judicial Magistrate with all consequential benefits, including pay fixation, seniority & allied allowances admissible under the service Rules, which may inure in his favour in view of the expunction of the impugned adverse remarks. The petitioner would be entitled to the benefit of continuity of service on promotional post for all purposes including arrears or salary and perks throughout.