te
_ 299 "AMAR KANT CHOUDHARY . - STATE OF BIHAR & ORS. | January 3, 1984
. [ES VENKATARAMIAH AND R B. Misra, uu. a)
. Natur sal glstior—rale of-adverse report in confidlential roll not to be acted
"; upon to deny promotional opportunities unless, communicated and explanation consider red —aeting other wise vitiates, decision.
- The appellant, a directly recruited Deputy, Superintendent of Police’ in the
Police Department of the Respondent State was considered i in 1976 for appointment ° 4s a member of the Indian, Police Service under the provisions of the Indian Police °
Service (Recruitment) Rules, 1954 read with the Indian Police Service (Appointment by promotion) Regulations, 1955, The Sclectiorr Committee did not include the. appellant in the select list because of ‘an adverse entry.in his confidential roll, of 1973-74, The appellant was communicated the said adverse entry only ini’ 1977. which was later on expunged by the State Government in December 1980. There were also adverse entries in the confidential rol! of the appellant for the year 1974-75 which were communicated to him in 1976 and which were also later on expunged by the State Government in February, 1978 and October 1980. ‘The Selection
. Committee met again in March 1981, bit this time also did not include the appellant | in the sélect list while some of his juniors were included. ‘The appellant questioned the validity of the decision of the Selection. Committee in, (a writ petition before the High Court: The High Court dismissed the ‘writ’ petition at the stage of admission. Hence this appeal. In this appeal the appellant urged that the Sclection Committee was wrong in relying upon the’adverse entries which had been made In-his confidential rolls which had not been either communicated to him or against which he had made representation which had. remained, undisposed of and which had been subsequently expunged. — -
Allowing ihe appeal,
° HELD: The principle is well settled that in accordance with the rules of
. natural justice, an adverse report in a, confidential roll cannot be acted upon to 7 deny promotional opportunities unless it is comminicated to the person concerned . so-that hé has an opportunity to improve his work and conduct or to explain the circumstances leading to “the report, SucHan opportunity: is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered” by the person concerned, whether the adverse
: report is justified. (302 F] -
. Gurdial Singh Fijji v. State of Punjah & Ors. 7 {1979} 3 S.C. R, ‘518; referred to.
In the instant case, the case of the appellant for promotion to’ the Indian
300 - - . - SUPREME COURT REPORTS | ‘984)2 56%.
r
Police Service Cadre-had not been considered by the committee in a just and fair way and his case has been disposed of contrary to the principles laid downy in the Gaurdial Singh Fijji’ 's case. The decisions of the Selection Committee recorded at
' its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in, dismissing the petition of the appellant. The appellant has made out a case for reconsideration of the question of his promotion.
to the Indian Police Service Cadre of thé State of Bihar as on December 22, 1976.
- The Selection Committee has now to reconsider ‘the case ofthe appellant accor dingly. (lot E- G}.
R.L. Butail v. Union of India & Ors., [197]] 2 S.C.R. 55. distinguished.
In order to,avoid a contingency,’ as arose in this case, the Go*ernment may considér the introduction of a system in which the officer who has to make entries
-in the confidential roll may be required to record his remarks in the presence of the-Officer against whom remarks are proposed to be made after giving him an opportunity to explain ahy circumstance that may appear to be against him with the right to-make representation to higher authorities against any ‘adverse remarks.
’.- Another system which may be introduced. is to ask the officer who records the confidential remarks to serve a copy of such remarks on the officer concerned before
’ the confidential roll is submitted to the higher authorities so that his respresentation against the remarks may also reach. the higher authority shortly after the confiden- tial roll is received. This would curtail the delay in taking action on the representa- .
iton, [105 E-G] |
> Ove APPELLATE JURISDICTION : Civil Appeal No. 8491 of 1983,
. From. the Judgment and Order dated 5tli October, 1982 of the
- Patna High Court at Patna in C.W.J.C. No. 1420 of 1982.
PR. Mridul, and M.P. Jha, for the Appellant.
»
- BB: Singh, for the Respondents The J udgment o! of the Court was delivered by .
-VENKATARAMIAN, J. | This is an appeal by special leave against the order dated: October 5, 1982 in C.W.J.C. No. 1420 of 1982 on the file of the High Court of Patna dismissing the petition filed by the appellant under Article 226 of the ‘Constitution.
The facts of tlie case are these: The appellant was directly recruited and appointed as a Deputy Superintendent of Police-in the
‘Police Department of the State of Bihar i in the year 1964. In 1973 he was eligible to be considered for appointment as a member of the Indian Police Service under the provisions of the Indian,Police Seryice a
~ ik
“4
(Recruitment) Rules, 1954 (hereinafter referred to as ‘the Rules’)
- read with the Indian Police. Service (Appointment by Promotion)
Regulations, 1955 (hereinafter referred to as ‘the Regulations’) framed under sub-rule (1) of Rule 9 of the Rules. His case was placed before _ the Committee constituted under Regulation 4 of. the Regulations for the purpose of preparation of the list of suitable officers for promotion to the Indian Police Service Cadre of the State of Bihar in 1973, 1974, 1975 and 1976. In the years 1973, 1974 and 1975, he could not be included in the select list as he was junior to those who - were included in the’select list, In the year 1976 his name was not included in ‘the select list as there was an adverse: entry in his confidential roll :of 1973-74, The reasons given by the Committee for Superseding the appellant based on. the confidential roll were- these :
“Delayed disposal of pending papers and supervision notes, *Inadequate control over office, judgment, initiative, sense of responsibility and management reported to be just fair, Censured by State Govt. order dt. 20th Oct., 1975.” ;
The Selection Committee took, the decision to supersede the appellant at its: meeting held on December 22, 1976 -in view of the above entry in the confidential ro!J of-the appellant. It, is not dispuicd
‘that the said adverse entry was communicated to the appellant in the year 1977 after the above meeting was‘over, It ‘appears that there were also adverse entries in the annual confidential roll of the appellant for the year 1974-75. They were communicated to tHe appellant
‘in the year 1976. The appellant made representations in respect of both the adverse entries in time: His main ‘grievance was that they ;
had been made by his official superior who was: biased against him. The adverse entry made in the confidential roll for the year 1973-74 was expunged by the State Government on December 3, 1980 and the adverse entries in the confidential roll for the: year 1974-75 were expunged by two orders dated February 21, 1978 and October 7, 1980. - ' There was no meeting of the Selection Committee from 1977 to 1980.
It, however, met on March. 11/12, 1981, On this “occasion the appellant represented to the Committee that the: adverse entries in his confidential rolls had been removed by the State Government by various orders and requested them to consider his case for promotion
‘to the Indian Police Service Cadre. On this occasion the Cconimilice - did not look into the confidential rolls of the appellant for the years.
1979-80 and 1980-81 which: contained entries very favourable to the appellant for no fault of the appellant. .The’ Committée, however,
AK, CHOUDHARY v. BIHAR (Venkataramiah, J, - 301
A.
30200 1 SUPREME COURT REPORTS [1984] 2 s.c:r..classified him as. ‘good ‘out did net include him i m ‘the select list while some of his juniors were included. The appellant represented to the
“Committee and the State’ Government ageinst the decision taken by’
the Committee. The Committee again "met on October 14, 198).
_ When nothing came out. of the representations -made by’ him, tke appellant filed.4 writ petition questicning the validity.of the decisions
. of the. Selection Committee before the. High Court of Patna. The petition was'‘dismissed at the stage of admissicn. «This appeal is fi ed © by special leave against the ordet of the High Court.
The main ‘point urged before us is that the Selection Committee had committed, an illegality in rejecting the tldim of the appellant fer being included in the select list in the year 1976 by relying upcn the adveise entries which had been made.in his confidential rolls which had’ not been either communicated to him or against which. he had made representation which had remained undisposed : ‘of and which had. been subsequently Sxpunged.
“TG 119797 3 SOAR 518.
“ The true legal position governing such cases is laid down by this
Court in Gurdial Singh Fijji v. State of Punjab & Ors.) which was a case arising under the’ Indian Administrative Service (Appeintment " - . by Promotizn) Regulations, 1955 which more or less cerrespond to ‘ the Regulations applicable to the Indian Police Service, In the ‘atoyé
‘case Chandrachud, ‘C.J. has observed thus | :
“The principle is well‘setiled that’ in accordance, with the rules of natura! justice, an adverse. report in a confidential roll cannot be.acted upon to deny promotional opportunities: . .
- unless it is communicated ‘to the person concerned so. that : -* he has an opportunity ‘to improve his’ work and conduct or. to explain’ the circumstances leadjng to “the report. Such an opportunity is not an empty formality, its object, par-— “tially, being to enable the superior authorities to decide on | a consideration of the explanation offered. by the person concerned, whether the adverse report is justified. Un- .. . fortunately, for one reason or another, not arising out of _any fault on the part of the. appellant, though ihe adverse ~ report was communicdted to him, the Government has not been: ablé to consider his explanation and decide whether the report was justified. In these circumstances it is difficult “to support the non-issuance of. the integrity certificate to ay
. (ly [1974] 2 SOR. 58.
A.K. CHOUDHARY ¥. BIHAR (Venkataramiah, J.) 303 the appejlant. The chain of reaction began with the adverse report and, the infitmity in the link of causation is that no one has yet deciced whether that report was justified. We ‘cannot speculate, in the absence of a proper pleading, whether — the appellant was not found suitatle otherwise, that, is to say, for reasons other than_ those connected with the nonissuanice of an integrity , certificate to him.” .
It is not disputed that the c ‘avsification ef cfiicers whose cases
- are taken up for consideration into ‘ ‘outstanding’, ‘very gced’, ‘eccd’.
or ‘bad’ etc. for purposes of promotion to the Indian Police Service ,
Cadre is mainly based upon thé remarks in the confidential rolls.
On December 22; 1976, when the: Selection Committce ‘met, the . adverse remarks-in the confidential roll for 1973-74 had not been
‘communicated’ and the appellant’s representation ‘1egarding adverse remarks in the confidential roit for the ycar 1974- 75 and censure against him had not. been: dis sposed . of zJthough it is: alleged that one
Shri- Yamuna Ram agaist whom also edyerse remarks ‘lad been | | " made was included provisionally in,the select list - When the Selection
Committee met on March 11 and 12, 1981 despite State. Government’s _ ‘suo motu decision not to retain adverse remarks for the’ year 1976-77 on records, the same had not been removed’ from the confidential roll. This must have influenced the decision. of the. Selection Com- mittee. It is also seen that the confidential rolls of the appellant
- for the year 1979-80 and’ 1980-81 which contained entries favourable _ to the appéllant were not placed before the Selection Committee.
On October 14, 1981 when the Selection Committee met, it does not ‘appear to have considered the representation made by. the appcllant
' against his non-selection. ‘In addition to all these, the State Govern- ment has expunged the adverse remarks by its orders made from time -
- to time. These facts are not controverted by the respondents,
The facts of this case are distiri guishable from the facts itivolved in the decision of this Court in R-L. Butail v. Union of India &-Ors,™ which is relied on by the respondents. In that case the confidential report of the appellant therein for the year 1964 contained: ‘an adverse entry. and he had ‘made. a representation regarding it, | When’ -the Departmental Promotion Committee met in Marcb, 1966, the appellant’s representation | regarding’ the adverse entry of 1964. was not placed before it and a decision adverse to the appellant was taken | by the Committee without reference to the said representation. The
304i oo SUPREME COURT REPORTS [1984] 2 S.C.R.
appellant contended before this Court that the omissian to: consider his répresentation before the date of meeting of the Committee vitiated
"its decision. The Court held that the -omission either to place the - - said representation before the Committee or its “non-consideration before the date of the meeting had no effect on the decision of the
Committee as the representation had actually been rejected subse- - quently with the result that. the confidential Teport for the year 1964 remained unchanged. The position in the case before us is different. Herc the adverse entries in question have in fact been expunged by the State Government subsequently. It may be pertinent to. state here that the” practice of the Departmental Promotion -Committee ' referred to in Butail’s case (supra) was that if in such a case-a rep- " resentation were to be accepted and.in consequence the confidential - report svas altered or the adverse entries were expunged the Committee
"would have to review its recommendations in the light of such a result. The appellant in the present case has pressed before us for a similar relief as the adverse entries made against him have been since expunged.
After giving our anxious consideration to the uncontroveried material placed before us we have reached the conclusion that the ~ case of the appellant for. promotion to the Indian . Police- Service Cadre has not been considered by ‘the Committee in a just and fair way ‘and his case thas been ‘disposed of contrary to the principles laid - down in Gurdial Singh Fijji’s case (supra). The decisions of the Selee-
.tion Committee recorded’ at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed’ on the adverse remarks which were later on expunged. The High Court ‘Committed.an error in dismissing the petition’ of the appellant and its order is, therefore, liable to be set aside. We accordifigly set aside the order of the High Court, .We. hold that the . appellant has made out a case for reconsideration of the question ef his promotion to the Indian Police Service Cadre of the State of
‘Bibar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981. selected as on March.12, 1981 his: case has to be considered as on October 14,1981, The Selection Committee has now to reconsider " the case of the appellant accordingly after taking into consideration the orders passed by the State ‘Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the ‘appellant. If on such ‘reconsideration the’ appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a direction to the respondents.to reconsider the case of the
If-he is not, s,
. A.K, CHOUDHARY ¥, BIHAR (Venkataramiah, J.). 305 appellant ‘as stated above.: We hope that the above direction will be complied with expeditiously but not later than four months from today.
Before concluding we wish to state that the Central Government ‘and the State Governments should now examine whether the present» system: of maintenance of confidential rolls should be -continued. Under the present system, entries are first madé in the confidential roll of an officer behind his back and then he is given an opportunity .
to make a representation against any entry that may have been made against him by communicating the adverse entry after considerable delay. Any representation made by him would be considered by a higher authority or the State Government or the Central Government, as the case may be, some years later, as it has happened in_ this case, by. which time any evidence that may be ihere to show that the entries made were baseless. may have- vanished. The predicament in which
..the officer against whom adverse remarks are made is then placed can éasily be visualised. ‘Even the autliority which has: ‘got to pass orders on the representation.of the officer will find it difficult to deal with the matter satisfactorily after a long interval of time.. -In the meanwhile the: officer concerned would have missed “many opportu- ties which would have advanced ‘his prospects in the service. In order -to avoid’ such a contingency, the Government may consider. 7 the introduction of a system in which the officer who has to make | entries in the confidential roll may be required to record his.remarks
. in the presence of the officer against whom ‘remarks are proposed to be made after giving him an opportunity to explain any circumstance
‘that may appear to be a gainst him with the right’ to make representation to higher authorities against any adverse remarks. This course | may obviate many times’ totally baseless remarks being made in the confidential roll and would minimise the unnecessary suffering to which the officer concerned will be exposed. Another system which, may be introduced i is-to ask the officer who records the confidential .
remarks to serve a copy of such remarks on the officer concerned before the confidential roll is submitted to the higher authorities so
- that his representation against the remarks may also reach the higher . ~ authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation. Suspensions,’
adverse remarks in confidential rolls and frequent transfers from one"place to another are ordered or. made many a time without justification and without giving a reasonable opporturiity to ‘the officer concerned and such actions surely result in the demoralisation of the services. Courts can give very little relief in such . cases, The
; 306° "+ SUPREME COURT REPORTS {1984] 2 s.cr.
Executive itself should, therefore, devise effective mearis to mitigate the hardship caused to the officers who ate subjected to such treatment. These questions require to be examined afresh in the light of the - experience gained in recent years and solutions should be found to eliminate as far as possible complaints against misuse of these powers by official superiors who may not be well disposed towards the officer against whom such action. is taken. It is needless to state that a _ non-disgruntied bureaucracy adds to the efficiency ‘of administration.
The ‘appeal is accordingly allowed with ‘costs.
HS.K. a oe a ——*. Appeal allowed. .