Case: Amar Kant Choudhary Vs. State of Bihar and Others

VENKATARAMIAH, J.1. 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.2. The facts of the 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 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 Service (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 constitute d 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 no t 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."3. 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 roll of the appellant. It is not disputed 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 bee n 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 Commit tee 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 Committee 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 Committee, however, classified him as good but did not include him in the select list while some of his juniors were included. The appellant represented to the Committee and the State Government against the decision taken by the Committee. The Committee again met on October 14, 1981. When nothing came out of the representations made by him, the appellant filed a writ petition questioning the validity of the decisions of the Selection Committee before the High Court of Patna. The petition was dismissed at the stage of admission. This appeal is filed by special leave against the order of the High Court.The main point urged before us is that the Selection Committee had committed an illegality in rejecting the claim of the appellant for being included in the select list in the year 1976 by 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.4. 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 (Appointment by Promotion) Regulations , 1955 which more or less correspond to the Regulations applicable to the Indian Police Service. In the above case Chandrachud, C.J. has observed thus:"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 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 leading to the report. Such an 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. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him , the Government has not been able 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 the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the nonissuance of an integrity certificate to him."It is not disputed that the classification of officers whose cases are taken up for consideration into outstanding, very good, good or bad etc. for purposes of promotion to the Indian Police Service Cadre is mainly based upon the remarks in the confidential rolls. On December 22, 1976, when the Selection Committee met, the adverse remarks in the confidential roll for 1973-74 had not been communicated and the appellants representation regarding adverse remarks in the confidential roll for the year 1974-75 and censure against him had not been disposed of although it is alleged that one Shri Yamuna Ram against whom also adverse remarks had been made was included provisionally in the select list. When the Selection Committee met on March 11 and 12, 1981 despite State Governments 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 Committee. 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 appellant were not placed before the Selection Committee. On October 14, 1981 when the Se lection Committee met, it does not appear to have considered the representation made by the appellant against his non- selection. In addition to all these, the State Government has expunged the adverse remarks by its orders made from time to time. These facts are not controverted by the respondents.5. The facts of this case are distinguishable from the facts involved 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 March, 1966, the appellants 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 appellant contended before this Court that the omission to consider his representation 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 subsequently with the result that the confidential report for the year 1964 remained unchanged. The position in the case before us is different. Her e 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 Butails case (supra) was that if in such a case a representation were to be accepted and in consequence the confidential report was 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 uncontroverted 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 has been disposed of contrary to the principles laid down in Gurdial Singh Fijjis case (supra). 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 and its order is, therefore, liable to be set aside. W

Decision:
1[ds]The facts of this case are distinguishable from the facts involved 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 March, 1966, the appellants 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 appellant contended before this Court that the omission to consider his representation 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 subsequently with the result that the confidential report for the year 1964 remained unchanged. The position in the case before us is different. Her e 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 Butails case (supra) was that if in such a case a representation were to be accepted and in consequence the confidential report was 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 uncontroverted 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 has been disposed of contrary to the principles laid down in Gurdial Singh Fijjis case (supra). 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 and its order is, therefore, liable to be set aside.