REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 11, 2010 Head Constable Amar Singh .....Appellant VERSUS State of Haryana and others ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. S. N. Yadav, Advocate, for the appellant. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The appellant had filed a suit to impugn the adverse remarks endorsed in his confidential report for the period form 3.11.2002 to 31.3.2003 while he was posted in Police Station, Ellenabad, District Sirsa as M.H.C in Police Station Odhan. The adverse remarks conveyed to the appellant were as under:- “(i) Discipline: is a disgruntled Head Constable. (ii)Integrity: Doubtful. (iii)Reliability: Not reliable. REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 2 }: (iv)General remarks: While posted at P.S.Ellenabad he used to pass on prior information to Satta Gamblers as and when plans were made to organize raids. On such complaints, he was transferred to police lines, Sirsa.” The appellant made a representation against these adverse remarks, which was rejected on 28.10.2003. He thereafter filed an appeal against this order which was rejected on 13.2.2004. He accordingly filed a suit to impugn all the orders, including the adverse remarks on the ground that these were illegal, null and void. Plea was that the adverse remarks were endorsed by ignoring the mandatory provisions contained in the consolidated instructions issued by the Government on recording of annual confidential reports. It was also pleaded that the remarks were endorsed in violation of the principles of natural justice and in violation of the statutory rules contained in the Punjab Police Rules. In the written statement filed by the respondents, certain preliminary objections were raised. On merits, the orders were justified being legal and valid. It was pointed out that there were complaints regarding the work and conduct of the appellant during his posting at Ellenabad and on that basis, it was viewed that the appellant had connived with Sata gamblers and as such, this was reflected in his annual confidential report. It is also stated that the remarks were endorsed on the basis of over all performance of the appellant and that the appellant was given proper opportunity of being heard and, thus, it was prayed that the suit filed by him be dismissed. The Trial Court framed the following issues:- “1. Whether orders dated 28.10.2003 and 13.2.2004, REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 3 }: passed by defendants Nos.3 and 4 respectively are illegal, null and void, against executive instructions on the subject? OPP 2. Whether the suit is not maintainable on account of availing of all departmental remedies? OPD 3. Relief.” The Trial Court after appreciating the evidence, dismissed the suit. Thereafter, the appellant filed an appeal, which was also dismissed and so he has filed this Regular Second Appeal. Learned counsel for the appellant has made two fold submissions before me to impugn the judgments passed by the Trial Court as well as by the first Appellate Court. He would submit that there is no material in support of the remarks endorsed in his annual confidential report and these were endorsed without serving any notice on him and, thus, was in violation of the principles of natural justice. The counsel would refer to the comments made by Sh.Attar Singh Ahlawat, I.P.S (Exhibit D-3) where he had mentioned that these remarks were endorsed on the basis of the complaints regarding the work and conduct of the appellant but later such complaints were not substantiated. In support, the counsel has referred to State of U.P. Vs. Yamuna Shanker Misra and another, 1997 (3) RSJ 33, where it is observed that before forming an opinion to be adverse, the Reporting Officer writing confidential report should share the information, which is not part of record with the Officer concerned, have the information confronted by an Officer and then make it part of record. It is also observed that this amounts to an opportunity given to erring/corrupt REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 4 }: officer to correct the error of judgment, conduct, behaviour and integrity. In U.P.Jal Nigam and others Vs. Prabhat Chandra Jain and others, 1996 (1) RSJ 761, the Hon'ble Supreme Court has observed about the requirement of recording reasons for down grading on the personal life of the officer concerned and inform him of the change in the form of an advice. The counsel would refer to the ratio of law in State of Haryana Vs. Karan Singh, 2002 (1) RSJ 109, where this Court has observed that a judicious approach is required on the part of Reporting Officer while recording adverse remarks, particularly on integrity and when there is no material on the basis of which these remarks could be sustained, then these may not be upheld. Learned State counsel, on the other hand, would refer to the decision of this Court in R.S.A. No.179 of 1985, decided on 29.1.2010 (The State of Haryana and others Vs. Lajpat Rai ), where the Court has held that recording of annual confidential report is subjective assessment of public servant and if there is any breach of instructions of the Government while recording confidential report, then the report does not get vitiated. In this case, the Court has relied upon number of judgments like Vijay Parkash Versus State of Haryana 2000(1)S.C.T.1076, Dharam Singh Versus State of Haryana 2001(2)S.C.T.1139 and Om Parkash, Conductor Versus State of Haryana and others 2006(2) S.C.T.408. In fact, this Court had earlier considered some of the judgments relied upon by learned counsel for the appellant while deciding Regular Second Appeal No.2182 of 2009 (Ram Karan Vs. REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 5 }: Haryana State and others), decided on February 01, 2010. In Karan Singh's case (supra), the Court had found that there was no complaint against the Conductor from any passenger or the checking staff that he did not issue the tickets. In the present case, there concededly were complaints against the appellant, which were taken note of to endorse remarks in the confidential report. Reference may be made to the case of Amrik Singh Vs. State of Haryana, 1995 (4) RSJ 269. It is observed in this case that while exercising jurisdiction under Article 226, the High Court does not act as a Court of appeal while making an adjudication on administrative matters. It is also observed that in a sense recording of ACRs is of subjective satisfaction of the officer recording the same and is an administrative act. In Kuldip Singh Vs. State of Punjab, 1992 (5) S.L.R 189, it is held that “recording of annual confidential reports is subjective and administrative nature. The breach of administrative instructions which are in the nature of guidelines for the internal consumption by the officers at the time of recording of annual confidential reports and expunction of adverse remarks etc. do not confer upon the officer concerned a right to challenge in the Court of law.” In Dharam Singh's case (supra) this Court has viewed that the Court cannot go into the correctness of a confidential report and the only remedy available to an official is to file a representation under the Rules/Instructions which the appellant therein had availed and had been rejected. In Om Parkash's case (supra), a similar view was taken to REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 6 }: hold that recording of Annual Confidential Report is within the exclusive domain of the Reporting Officer and is within his subjective satisfaction. It is observed that unless some malafides are proved against the Reporting Officer, the interference would not be justified. To similar effect is the view in the case of State of Punjab and Anr. Vs. Bakhtawar Singh, 2002 (4) S.C.T. 1026, where it is observed that Civil Court can quash adverse remarks recorded in ACR only if the same are result of malice, ill will or spite of the officer towards the officer commented upon. Reference here can also be made to the cases of High Court of Judicature of Allahabad through Registrar Vs. Sarnam Singh and another, 2000(1) RSJ 356 (SC), where the High Court view about giving opportunity of hearing before recording adverse entries was not approved. It is observed as under:- “......We uphold the findings of the High Court, but do not subscribe to the view that before an adverse entry was recorded in the Character Roll, an opportunity of hearing was, by any principle, required to be given to the respondent.......” Similar view was expressed in R.L.Butail Vs. Union of India, 1970 (2) SCC 876. In this case, it is held that rules do not provide for nor require an opportunity to be heard before any adverse entry is made. Making of an adverse entry is not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. In this regard, Major General IPS Dewan Vs. Union of India, 1995 (3) RSJ 293 is also relevant. REGULAR SECOND APPEAL NO.2935 OF 2009 :{ 7 }: In view of the ratio of law laid down in the cases noted above, it can be said that recording of remarks in the confidential reports is the subjective satisfaction of the reporting officer and there is no principle which would require an opportunity of hearing employee while endorsing remarks in the report. It can be said that the questions of law raised are settled and, thus, there is no case made out for interfering in the judgments under appeal. The Regular Second Appeal is accordingly dismissed. March 11, 2010 ( RANJIT SINGH ) khurmi JUDGE