Rajasthan High Court - Jaipur
O.P. Jain vs The High Court Of Judicature For ... on 10 August, 1990
Equivalent citations: 1990WLN(UC)356
JUDGMENT Jasraj Chopra, J.
1. By this writ petition, the petitioner has prayed for quashing of an adverse entry made in his confidential record in the year 1986 vide Annexure-3 dated 29-1-1988 where by Hon'ble the Chief Justice has recorded an adverse remark in his Annual Confidential Report for the year 1986 to the effect that his integrity is doubtful. A representation to ex-punge or annul that entry has been rejected and hence this writ petition.
2. It was, however, conveyed to the petitioner that these remarks have been recorded by Hon'ble the Chief Justice and it is not the practice of this Court to intimate the name of Hon'ble the Chief Justice, who has recorded these adverse remarks/observations and they are based on the observations of the screening committee headed by Hon'ble Mr. Justice N.M. Kasliwal (as he then was). This has been conveyed to the petitioner vide Annexure-5 dated 12-2-1988, in reply to his letter dated 6-2-1988 wherein he sought information as to who has recorded these remarks in his annual appraisal report and to which part of the year they relate and what is the basis for these remarks. The petitioner was further informed that the report of screening committee headed by Hon'ble Mr. Justice N.M. Kasliwal being a secret document, its copy cannot be supplied to him. This has been conveyed to him vide . Annexure-8 dated 18-7-1988. Vide Annuxre-10 dated 1-10-1988, the petitioner has been informed that the basis of the remarks is the notes of the committee consisting of Hon'ble I Mr. Justice N.M. Kasliwal, Hon'ble Mr. Justice M.C. Jain, Hon'ble Mr Justice V. S. Dave mentioning there is the complaints made to them by the members of the bar, when the committee visited Pratapgarh and Kota.
3. It may be useful to mention here that the petitioner remained at Pratapgarh from 8-8-1967 to 1-10-1971 as Civil Judge, Labour, Industry and A.C.D. Cased from 2-7-1980 to 1-9-1981 and again as District Judge, Kota from 7-5-1984 to 28-9-1985. To Complete the sequence of the facts it may also be stated here that the committee of five Hon'ble Judges headed by Hon'ble Mr. Justice N.M. Kasliwal submitted its report to Hon'ble the Chief Justice in the year 1985 but no adverse remarks have been given in the Annual Appraisal Report for the year 1985 relating to the petitioner but these remarks have been made the basis of the Annual Appraisal Report of the petitioner for the year 1986. These remarks have been assailed by Mr. M. Mridul the learned Counsel appearing for the petitioner on the ground that Annexure-15 dated 12-4-1989 by which the petitioner representation has been rejected against his remarks is not a speaking order. These remarks are without jurisdiction as the author of these remarks joined as Chief Justice of Rajasthan High Court on 1-9-1986 and at that time, Shri O.P. Jain was on deputation with the Board of Revenue for Rajasthan at Ajmer as its member and therefore, Hon'ble the Chief Justice did not have any opportunity to watch his work.
4. It was further contended by Mr. Mridul the learned Counsel appearing for the petitioner that the these remarks are uncalled for and without jurisdiction. He has submitted that the year for which these remarks were given against the petitioner, another Chief Justice has given very good report and therefore, when two Chief justices differ in their opinion as regards the performance should be recorded only after a thorough enquiry and not in the casual manner. These remarks have also been assailed on the ground that they are based on the notes or dates collected by the Committee headed by Hon'ble Mr. Justice N.M. Kasliwal but that material has not been supplied to the petitioner and, therefore, his right to represent against these remarks has been seriously jeoparadised and therefore, such remarks cannot be sustained.
5. It was next contended by Mr. Mridul, the learned Counsel appearing for the petitioner that the Annual Confidential Report or the Annual Appraisal Report relates to the assessment of an Officer for that particular year. The past material collected by a committee cannot be made the basis to appraise the performance of an Officer in the subsequent years. Some adverse remarks could have been recorded in the year 1985 but they could not have been made in the year 1986 and, therefore, such an adverse entry is unfair.
6. According to Mr. M. Mridul the representation of the petitioner has been rejected by the same authority who gave the adverse remarks and hence, the rejection of representation is biased and the procedure adopted for disposal of the representation is unfair. It was also contended that these adverse entries relates to the year 1986 but they are based on the material which has been collected for the period when the petitioner worked as Civil Judge, Pratapgarh from 8-8-1967 to 1- 10-1971 Judge, Labour, Industry and ACD cased from 2-7-1980 to 1- 9-1981 and District Judge, Kota from 7-5-1984 to 28-9-1985 Mr. Mridul has submitted that the petitioner after he remained at Pratapgarh was promoted an Additional District Judge on 15-4- 1972. He was again promoted as District Judge on 28-8-1985. He was granted selection grade of the District Judge with retrospective effect i.e. from 1-6-1981 vide order dated 4-2- 1984. Thus, the entire adverse material that has been collected by the Committee relating to the period between 8-8-1967 to 1-10- 1971 stands washed off because thereafter, the petitioner has been promoted not only as Additional District Judge or the District Judge but he has been granted selection grade of the District Judge with retrospective effect. As regards the adverse material that has been collected for the period relating to 2-7- 1988 to 1-9-1981 when the petitioner worked as District Judge, Kota, the contention of Mr. Mridul is that the petitioner has been selected by a high-powar committee headed by Hon'ble the Chief Justice for the post of Member, Board of Revenue for Rajasthan at Ajmer. This committee in Addition to Hon'ble the chief Justice consisted of the Chief Secretary to the Govt., Chairman Rajasthan Public Service Commision and Secretary to the Govt. in the Revenue Department etc. According to Mr. Mridul, when such a high power committee has selcted him for the post of the member Board of Revenue for Rajasthan, Ajmer then it clearly meant that there was no adverse material against the petitioner prior to that selection and even if it was there it stands wahsed off.
7. Mr. M. Mridul, the learned Counsel appearing for the petitioner has further submitted that the petitioner has been confirmed on the post of District Judge (Selection Grade) vide order dated 5-4-1989. He has submitted that when despite these adverse remarks he has been confirmed on the post of District Judge (Selection Grade) vide Order dated 5-4-1989, this adverse entry relating to the year 1986 stands automatically washed off. It was also contened by Mr. Mridul that the State Govt. has issued number of Circulars about filling up of the Annual Appraisal Recorts and they contain certain principles of natural justice and that procedure has not been followed in this cage neither for recording of the Annual Appraisal Report nor as regards the disposal of his representation and, therefore, neither these adverse remarks can be justified nor the rejection of the representation made by the petitioner can be justified. A number of authorities have also been cited by Mr. M. Mridul the learned Counsel appearing for the petitioner in support of his contentions.
8. A return has also been filed on behalf of the respondents.
9. I have heard Mr. M. Mridul the learned Counsel appearing for the petitioner and Mr. D.S. Shishodia the learned Counsel appearing for the respondents.
10. So for as the last contention of Mr. Mridul is concerned, I may state at the very outset that a Division Banch of this Court in M.P. Mittal V. Rajasthan High Court and Ors. (D.B. Civil Writ Petition No. 1720 of 1986 and eight other similar writ petitions decided on 26-2-1990) has taken the view that although the Government has issued Instruction/Circulars from time to time and even the forms have been prescribed to writ APAR but so far as the High Court is concerned, it has not adopted instructions/circulars/guidelines and as the control over the subordinate judiciary vests in the High Court, unless the Circulars/instructions/guidelines issued by the Govt. are adopted by the full Court they cannot be made applicable to the member of the subordinate judiciary. In the view of the matter, no help can be taken from the Govt. instructions/Circulars because they are not applicable in this case as they have not been adopted by the High Court in its Full Court meeting. However, the Division Bench has observed that the purpose of writing APARs by the employer or by one having administrative control over the members of the subordinate judiciacy is to keep a record of annual assessment of the government servant and whether or not any circular/guideliness/instruction have been issued for writing or maintaing the APARs and others connacted matter for government servants their omission will not come in the way of maintaining the aforesaid record of assessment in respect of the performance of a government servant so long as a reasonable system or procedure is observed.
11. It is, therefore, clear from the aforsaid observations that the purpose of writing ACRs or APARs is to keep the record of annual assessment of the government servant and a reasonable system or procedure must be observed in doing so. It was further observed that by the very nature of the object for which the APARs are written and maintained only such authrority who are competent to watch and supervise the work and conduct of a Govt. Servant can be competent to write APARs in the case of members of subordinate judiciary and the inspecting Judge of the district concerned where the member of subordinate judiciary is posted or the Administrative Judge if there is one and/or the Chief Justice is bound to have the occasion to assess the work and conduct of the member of subordinate judiciary and even if there are no guidelines/instruction/circulars is existence, which the Full Court alone has power to provide or lay down, it cannot be said that the aforesaid authorities are not competent to write or maintain APARs of the members of subordinate judiciary. The Division Bench further concluded that the guidelines/circulars/instructions issued by the Government for writing APARS and Matters connected there with of the Govt. Servants are not applicable to the member of subordinate judiciary, but the APARs. of the members of the subordinate judiciary are to be written and maintained as said earlier to keep the annual record of the performance of the Officer and to assess his work and conduct and as and when opportunity arises to examine the case whether such officer should be given promotion from one rank to another another or he should be retired compulsorily in public interest Under Rule 244(2) of the RSR, the same will furnish the relevant material along with other material, if any. Thus Hon'ble the Chief Justice who is the admininstrative head of the Judiciary has all right to writ the APARs of an Officer of the subordinate judiciary whether he is on deputation with the Board of Revenue for Rajasthan at Ajmer or he is posted on any other post under the High Court or with any other Govt. Department or Tribunal. This is so because whether an Officer of the Judiciary works in the Revenue Board or in any Tribunal, their Judgments do come to the notice of the High Court and even if an officer is posted in the Government then too the Chief Justice or the Administrative Judge being the administrative head of the judiciary have many other sources together any information about them in regard to their work and conduct. They have also duty to see that their officers work efficiently or with intergrity record of service in the from of APARs has to be maintained by the High Court. Thus they are the proper persons who shoudl as a matter of fact write their remarks in the APARs of such persons to assess their work and conduct, whether they work with any Govt. Department or in any Tribunal of whether their APARs are intiated by the Chairman, Board of revenue or the Chief Secretary or the Secretary concerned under whose administrative control such Department functions. In this view of the matter the contention of the petitioner that Hon'ble the Chief Justice could not write his APARs because at that time he was on deputation with the Board of revenue for Rajasthan at Ajmer cannot be accepted.
12. However, to this extent, the contention of Mr. Mridul has to be accepted that it is the annual performance appraisal report to assess the work and conduct of the Officer for that particular year. The Assessment may be based on facts which may relate to the years prior to the writing of the APARs or ACRs which might have come to the notice of the Chief Justice in that particular year either through judgments or through complaints or through the enquiries conducted by the Registrar Vigilance or by any inspecting Judge or any other authority who has been deputed by Hon'ble The Chief Justice for this purpose and that can certainly from the basis for writing of the APARs or ACRs of that particular year of that Officers but in that report is submitted one year prior to the writing of the APARs and no use is made of the report within that particular year by the concerned Administrative Judge or the Chief Justice then of course that cannot be made the basis for writing the APARs of an Officer in the succeeding year. Here, the report of the Committee headed by Hon'ble Mr. Justice N.M. Kasliwal was submitted to the Hon'ble the Chief Justice in the year 1985 and the then Hon'ble the Chief Justice did not make any use of it in the year 1985 and, therefore, that report could not have been utilised for assessing the work and conduct of the petitioner in the year 1986.
13. These adverse remarks have only been given on the basis of the notes of that Committee. It is not clear whether this remarks is based only on the basis of the notes made by the Committee or they are based on any conclusions of the Committee. It is quite possible that certain advocates may make complaints to the Hon'ble Judges about the conduct of certain Judicial Officers but before they are acted upon it is the duty of the Committee to come to a conclustion as to whether the complaint or complaints made is/are well founded or unfounded. It is only the conclusion of the Committee which can be utilised by Hon'ble the Chief Justice to record the assessment about the work of that Officer but the mere notes not supported by conclusion of the Committee cannot be made use of unless the officer is aforded an opportiunity to rebut such assertions of some advoacates.
14. Be that as it may, it cannot be disputed that the complaints made to the Committee as regards the period when the petitioner worked as Civil Judge, Pratapgarh from 8-8-1967 to 1-10-1971 stand washed off because thereafter, the petitioner was promoted not only as Addl. District Judge or the District Judge but was even granted selection grade of the District Judge retrospectively with effect from 1-6-1981 vide order dated 4-2-1984. That even washed off all the adverse remarks which might have been made as regards the period during which the petitioner worked as Judge, Labour, Industry and ACD Cases, Kota from 2-7-80 to 1-9-1981. The petitioner however, worked as District Judge, Kota from 7-5-1984 to 28-9-1985. Any adversecomments which might have been made against him as regards this period also stand washed off on account of his selection as Member Board of Revenue for Rajasthan at Ajmer by a High Court Committee in year 1986 and later on account of his confirmation in the selection grade of the District Judge Vide order 5-4-1989. Certain authorities have been cited in support of this argument but I need not refer to them because it is the well settled position of law that inspite of the adverse remarks if the petitioner is found fit for further promotion or is appointed on an important post by due selection by a High power committee or is confirmed on a particular post it would mean that all his earlier adverse entries relating to a period prior to that stand washed off.
15. There is one more reason why this adverse entry should be quashed. In this year 1989, Hon'ble Chief Justice has clarified these remarks in the APARs of the petitioner recorded in the year 1989 and that APAR has been shown to me by Mr. Shishodia, in which Hon'ble the Chief Justice has stated that he has heard nothing adverse to him or about his reputation since he came in September 1986. His Lordship further observed that his APARs were written by him for the year 1986 and the adverse remarks about his integrity has been made only on the basis of the notes made available to him of the Committee headed by Hon'ble Mr. Justice N.M. Kasliwal. That remarks has to be construed accordingly and read along with it. A note in this respect be made in his 1986-87 APAR and this be communicated to him. Thus, so far as the personal assessment of work of the petitioner by Hon'ble the Chief Justice is concerned, Hon'ble the Chief Justice has categorically stated that he has heard nothing adverse to him or about his reputation since he came in the year 1986. These remarks are solely based on the comments made in the report by the Committee headed, by Hon'ble Mr. Justice N.M. Kasliwal. Thus, this earlier assessment made by the Chief Justice in the APAR of 1986 on the basis of comments made in this Report of the Committee headed by Hon'ble Mr. Justice Kasliwal are not endorsed by the Chief Justice on a review of his earlier remarks. Thus these adverse remarks deserve to be quashed.
16. Although certain other points were formulated by Mr. M. Mridul at the initial stage but later when this report was brought to the notice of the Court, he did not pursue them and, therefore, I need not record my findings on them, certain authorities have also been cited about wash off theory which of course is a settled position of law and, therefore, I have not discussed them in detail.
17. In view of the discussion made herein-above, this writ petition is allowed. The adverse remarks recorded in the APARs of the petitioner for The year 1986 by Hon'ble the Chief Justice that his integrity is doubtful are quashed and expunged.
18. In the facts and circumstances of this case there will be no order as to costs.