Rajasthan High Court - Jaipur
Jhavar Prakash vs Rajasthan High Court on 1 March, 1995
Equivalent citations: 1995(2)WLC517, 1995(1)WLN286
JUDGMENT V.S. Kokje, J.
1. The petitioner a Judicial Officer, has challenged the adverse remarks given in annual confidential reports about him for the years, 1983, 1984, 1985 and 1987. The remark for the year 1983 was communicated on June 13, 1986. It was "Not a good officer". The remark for the year 1984 was also communicated on June 13, 1986. It was "Bad Officer. "Integrity doubtful". The remark for the year 1985 was communicated on August 16,1986. It was "Does not enjoy good reputation." The remark for the year 1987 was communicated on September 13, 1989. It was "Needs improvement in his capacity to handle files systematically. Lacks firmness. Closely identified himself with certain members of bar". The representations against the remarks for the years 1983, 1984 and 1985 were rejected on December 1, 1988 and the representation against remarks for the year 1987 was rejected on January 27, 1990, This petition challenging all these remarks was filed on March 26, 1990.
2. The petitioner contends that all these remarks were communicated after an unreasonable delay and are therefore liable to be rejected on that ground alone. It is contended that the basic purpose of recording remarks in Annual Confidential Reports (for short 'the ACR' hereinafter) is to assess the performance of the officer with a view to direct, instruct or guide the officer to improve upon his demerits. It cannot be used as a weapon to punish him. If the remarks are not communicated in time, the whole purpose is lost. It was also contended that the petitioner was victimised because of a rivalry between two Chief Justices succeeding each other. Decisions reported in Ram Avtar Khandelwal v. High Court of Judicature for Rajasthan at Jodhpur through Its Registrar 1992 (2) WLC (Raj.) 587, Richhpal Singh v. State of Rajasthan and another 1992(2) WLC (Raj.) 669 and Tekchand v. R.H.C. Jodhpur 1993(2) RLR 1991 were relied upon.
3. It was further contended that the remarks were not supported by any material and therefore deserved to be quashed. Reliance has been placed on the following decisions in Ishwar Chand Jain v. High Court of Punjab , Satyadeo Charon v. State of Raj 1991 WLR 96 Ramavtar Khandelwal v. R.H.C., Jodhpur 1992 WLC 587 Vaidya Ganpati Lal Harit v. State of Raj. 1990(2) RLR 664 and M.C. Taylor v. R.H.C. 1991 (1)(RLR 143).
4. It was further contended that representations against the remarks were rejected by cryptic orders without dealing with the points raised in them. Decision of the Supreme Court in Union of India and others v. E.G. Nambudiri was relied upon. It was also contended that it was incumbent on the authority considering the representation to call for and consider the comments of the Reporting Officer. This having been not done the remarks deserved to be quashed. Reliance was placed in this respect on the decisions in M.C. Taylor v. Rajasthan High Court Jodhpur 1991(2) WLC 212, Ram Avtar Khandelwal v. High Court of Judicature for Raj. at Jodhpur 1992(2) WLC 587 and Tek Chand v. R.H.C., Jodhpur 1993(2) RLR 91.
5. It was then contended that the remarks were washed off on account of petitioner's promotion in the year 1991 as Additional Chief Judicial Magistrate and in the year 1993 he was promoted to the post of Additional District Judge. Reliance was placed on The Regional Manager and another v. Pawan Kumar Dubey and Chandmal Mittal v. State of Rajasthan 1991(5) WLR Raj. 574.
6. We have heard the learned Counsel and perused the record. The need for earliest communication of adverse remarks in the ACR cannot be denied. But, everytime the communication is delayed, the remarks cannot be quashed for that reason along without looking to the circumstances in which the delay occurred. There cannot be a uniform formula for general and universal applications to all cases. It has to be decided in the facts and circumstances of each case whether the delay in communication of adverse remarks would be fatal and would call for quashing of the remark itself. Not only the reason if any, for the delay, but the nature of remark itself would be relevant factor in deciding this. Suppose, the reason for the delay is that some one favourably inclined to the officer had deliberately delayed the communication in order to benefit him. Can it still be said that the remark should be quashed only on the ground of delay? If the remark is such that it betrays a peculier trait in a persons character which is not likely to change with the passage of time, can it be said that such a remark becomes obsolete and stole because of its delayed communication ?.
7. In Ram Avtar Khandelwal's case (supra), remarks of 1983 were communicated on September 13, 1989 after six years and there was no adverse remark for the period between 1983 and 1989. In Richhpal Singh's case (supra), the delay in communication was of four years and the remark was communicated on the eve of promotion. The record within those four years was clean. The cases are therefore, distinguishable on facts.
8. As regards the argument that the remark should be supported by material, it has to be borne in mind that it is after all a remark in the ACR and not a finding arrived at after an enquiry. General traits of character and personality of the Officer are to be noted in the remarks. The efficacy and effect of the remark and the weight it will carry would of course depend on the basis on which the remark was given. But Reporting Officer can not be expected to give detailed reasons or grounds on which they have recorded the remarks. For the same reason calling the comments of the Reporting Officer before deciding representations can not be said to be necessary in every case.
9. In Union of India and other v. E.G. Nambudiri , the Supreme Court has clearly laid down the law in this regard.
10. Decision in Tek Chand v. The High Court of Judicature for Rajasthan, Jodhpur 1994(2) WLC (RAJ) 688 is also brought to our notice for the proposition that the yardstick in administrative service, dispute has to be the same for remarks of Judicial Service as it is for other Civil Service and no distinction can be made in their cases on the ground of nature of service.
11. The special feature distinguishing in Judicial Service from other Civil Services were high lighted in All India Judges' Association v. Union of India and/in the Review Petition in the same case i.e. All India Judges Association and others v. Union of India . In Paragraph-7 of the Review Judgment, the following observations throw light on the distinction between the two services:
The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State, are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the Stats power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive.
In Paragraph-9 it was observed as. follows:
It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the Judges and those of the members of the other services. It is true that under Article 309 of the Constitution, the recruitment and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312. It is the Parliament which is empowered to create an All India Judicial Service which will include posts not inferior to the post of District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of all the services should be the same.
12. It would therefore be clear that it is permissible to apply a different and strictere standard in deciding whether a remark in the ACR of a Judicial Officer should be quashed or not. Tek Chand's case (supra) is also distinguishable on facts. The delay was of six years and the facts and circumstances might have justified interference by the Court.
13. As already observed by us, it has to be decided in the facts and circumstances of each case as to whether delay in communication of adverse remarks would result in vitiating in remarks itself and on that count the remark deserves to be quashed or not. What is the reasonable time within which the remarks should have been communicated will also have to be decided in the facts and circumstances of each case.
14. In the case before us having gone through the record we do not find looking to the nature of remarks that the delay lit their communication would be fatal and for that reason the remarks deserve to be quashed. The petitioner had consistently a bad record over a period. In such circumstances, there is not case for quashing the remarks. Moreover, If despite these remarks he could get his promotion, it cannot be said that the authorities acting upon the remarks took them to be adverse to the extent that they proved to be hurdles in the matter of promotion for all times to come.
15. The petition therefore deserves and is hereby dismissed. There shall be no order as to costs.