1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.4866 of 2008 Date of Decision:13.07.2009 _____________________________________________________ Bbuvnesh Rastogi ....Petitioner Versus State of H.P. and others ....Respondents Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting1? For the petitioner: Mr. Neel Kamal Sood, Advocate. For respondents : Mr. R.K. Sharma, Senior Additional Advocate General for the respondents-State. _______________________________________________________ R.B.Misra,J (Oral) In the present petition, the petitioner is aggrieved of the remarks of the Annual Confidential Report of the petitioner for the year 1996-97 to the effect that the petitioner remained absent during the most part of reporting year and the working of the petitioner remained poor during this period. According to learned counsel for the petitioner, the remarks appear to vague and are based on surmises and conjectures. The petitioner was never informed/conveyed qua his deficiencies/short-comings. The remarks have been recorded without adhering to the settled position of law in this regard. 2. For the purpose of adjudicating the issues and the grievances of the petitioner, it is necessary to analyses the decisions of the different Court given from time to time. Whether reporters of the Local papers are allowed to see the judgment? . 2 2(a). In the State Bank of India V Kashinath Kher, AIR 1996 SC 1328, para 15, the Supreme Court has observed that the object of writing confidential report is two fold, i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. In Kashinath Kher,(supra) the Supreme has observed that the ACRs should be written by a superior officer with objectivity, impartiality and fair assessment. Writing of ACRs by officers of the same grade is violative of the principles of natural justice. 2(b). In Brij Mohan Singh V. State of Punjab, AIR 1987 SC 948, para 9, the Supreme Court has observed that making a representation against an adverse entry is a valuable right hence, it is imperative that an adverse entry is communicated and the representation against it is considered with full care. 2(c). In view of Supreme Court, In Union of India v. M.E. Reddy, AIR 1980 SC 563, it is not every adverse entry of remark that has to be communicated as the remark that has to be communicated as the remarks of general nature about work and reputation fall in this category. 2(d). In U.P. Jal Nigam V. Prabhat Chandra Jain, AIR 1996 SC 1661:1996) 2 SCC 363, the Supreme Court has observed that recording of remarks of down grading of assessment in respect of ACR of an employee even in a particular year, the reasons are to be recorded in the personal file and down grading is to be communicated in the form of an advice. However, subsequently, in Union of India and another Vs. Major Bahadur Singh (2006) 1 SCC 368, Hon’ble Supreme Court has considered its earlier judgment in U.P. Jal Nigam Vs. Prabhat Chandra Jain (supra) and has observed in Para-8 of Major Bahadur Singh (supra) that U.P. Jal Nigam case 3 has no universal application. The judgment itself shows that it was intended to be meant only for the employees of U.P. Jal Nigam only. 2(e). The Supreme Court has observed in R.L. Butail v. Union of India (1977) 2 SCR 55, that marking of adverse entry in the confidential report is not equivalent to imposition of penalty which would necessitate an inquiry or affording a reasonable opportunity before making it. 2(f).The Supreme Court making observations in Union of India v. E.G. Nambudiri, 1991 AIR SCW 1190, has indicated that, while rejecting the representation against the adverse entries the reasons may not be given. 2(g). In Amar Kant Chaudhury v. State of Bihar, AIR 1984 SC 531, the Supreme Court has indicated valuable suggestions in respect of recording of the entries and has further observed that the present system of awarding and communication of the adverse entries to the officer concerned and disposal of his representation against these were time consuming and causing not only inconvenience to the officer concerned but also avoidable difficulties to the authorities, as such the Supreme Court has observed as below: “ In order to avoid such a contingency, the Government may consider 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 the remarks are proposed to be made after giving him an opportunity to explain any circumstance that may appear to be against him with the right to make representation to higher authorities against any adverse remarks. This Court may obviate many times totally baseless remarks being made in the confidential roll and would minimize the unnecessary suffering to which the officer concerned will be exposed. 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 representation against the remarks may also reach the higher 4 authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation.” 2(h). In State of U.P. v. Kaushal Kishore Shukla, 1991 AIR SCW 793, the Supreme Court has held that A.C.Rs are relevant document to decide the suitability for continuance of a temporary employee in service. 2 (i). In para 7 of Brij Mohan Singh (supra) the Supreme Court has observed that it is now settled that adverse entries, if any awarded to an employee lose their significance on or after his promotion to a higher post. 2 (j). The Apex Court has observed in Lakhi Ram V. State of Haryana(1981) 2 SCC 674 that an officer whose chances of promotion are prejudiced by expunction of adverse remarks of another employee can challenge it in a court of law. 2 (k). In Baidyanath Mahapatra v. State of Orissa and anr.(1989) 4 SCC 664, the Supreme Court has observed that the purpose of communicating adverse entries to the government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improve his work and further if the entries are not justified the communication affords him an opportunity to make representation. If the adverse remarks awarded to a government servant are communicated to him after several years, the object of communicating entries is defeated. 2(l). In State of UP v. Yamuna Shankar Misra and another, (1997)4 SCC 7, the Supreme Court has observed that the object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The office entrusted with the duty to write confidential reports, has a public responsibility and trust to writ the confidential 5 reports objectively, fairly and dispassionately while given, as accurately as possible, the statement of facts on an overall assessment of performance of the subordinate officer. It should be founded upon facts and circumstances. Though, sometimes, it may not be part of the record, but the conduct reputation and character public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make adverse entries in confidential reports the reporting/reviewing officers should share the information which is not a part of he record, with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct behavior, integrity, or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the confidential report and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks, made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or by any appropriate judicial forum. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion. 2 (m). Supreme Court in Major Bahadur Singh (supra) dealing with the verdict of the High Court in respect of effect of promotion of military officer for non communication of adverse reflections of Annual Confidential Report of the year 1989-90 has distinguished its earlier judgment in U.P. Jal Nigam vs. Prabhat Chandra Jain (supra) and has observed that in the matter of making Annual Confidential Reports, three stages may arise(i) counseling;(ii) guidance and (iii) only when an officer failed to show the desired improvement, adverse/advisory remarks were to be included in his CR so that cognizance 6 was taken of his weakness while planning his future placements. Hon’ble Supreme Court has also observed in Major Bahadur Singh that the advisory remarks made in the ACR is not necessarily adverse and has observed in following paragraphs as below :- “The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the facts situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statues. To interpret words, phrases and provisions of a statue, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statues; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. Vs. Horton Lord McDermott observed(C) ALL ER p. 14 C-D). “The matter cannot of course be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an act of Parliament and applying the rules of interpretation appropriate thereto. This not to detract from the great weight to be given to the language actually used by that most distinguished judge. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper”. The following words of Lord Denning in the matter of applying precedents have become locus classicus: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” 7 In view of the foregoing analysis it becomes apparent that report which is annually recorded in confidential record have some purpose. In fact, the performance of an employee, the opinion about his individuality, personality, status and role played, work, action, performance, activities, attitude devotion, diligence, honesty, integrity, faithfulness of an employee has to be assessed confidentially. Three aspects are important in recording of confidential report. Firstly, the person or an employee in whose matter the confidential report is being made, has to be fairly assessed. Secondly, the qualities of the person who is making assessment or a report and thirdly, the criteria or parameter of evaluation. 4. Confidential and character reports should be written by superior officers objectively, impartially without any prejudices. Such Annual confidential report has to be recorded with confidentially and with two folds objectives i.e. firstly to give an opportunity to the officer concerned to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality, excellence and efficiency of officer or public service. Sometimes the ‘ACR’ is called or acknowledged as character roll entry, where, the characteristics of an individual values as a human being relatable to ‘morality’ preserve in him and one’s personality is also assessed relatable to the work assigned and post held by him. ‘Moral’ and ‘Morality’ connote the entire virtues of human being, in short justice, discipline, self-control, tolerance, benevolence, generosity, honesty, compassion, devotion to duty and willingness to self-sacrifice one’s interest and benefit for the Welfare of people or society. All these virtues cumulatively may be taken as covered in ‘morality’. It may also be said that these virtues are essential components of ‘good conduct’ and collectively known as ’morality’, the basic foundation of good personality of an individual human being or person may also be kept in mind-while making ‘ACR’ of an employee. 8 5. High Court of Gauhati in Pawan Kumar Tiwari Vs. Union of India and others 2005(3) GLT 633, while rejecting the communication of adverse entry and setting aside the order of rejection of representation of employee in reference to the adverse entry has made observations and has passed guiding principles by saying that where representation was submitted by an employee against the adverse entry, was rejected on different grounds and reasons which were not relatable to the adverse entry, in such circumstances, rejection of representation in respect of awarding adverse entry, was treated to be in the derogation to the norms of awarding adverse entry and to the violation of principles of natural justice. Following features are being highlighted in consonance to the guidelines given in Pawan Kumar (supra):- (i) The maintenance of character rolls is not enjoined by any statute or rules framed under Article 309 of the Constitution. Principles regarding record of confidential reports and communication of adverse remarks have been laid down in administrative instructions issued from time to time. The circular if any applicable at a particular point of time to be followed in its entirety. (ii) The character rolls are maintained primarily for the benefit of the State Government. Where the Government being the model employer has to make its own estimate or the assessment about the caliber of its servants or employees so as to derive their talents for the purpose. (iii) The instructions prescribe guidelines for the officers for making assessment of the worth and caliber of their subordinates. 9 (iv) The circulars of the State bind the department under the administrative control of the State Government and are not binding on the members of the subordinate Judicial Service under the Administrative control of the High Court under Article 235 of the constitution. (v) Since the action is taken on the basis of remarks in the character roll in the matter allowing crossing of efficiency bar, promotion, supersession or reversion etc. therefore, the adverse entries affect the service prospects of an employee and have civil consequences. (vi) At the time of recording of confidential report the employee is not entitled to any hearing. (vii) The time prescribed in any circular for communication of adverse entry is not mandatory but directory. If the adverse entry is not communicated in time, it is not wiped out. (viii) If the employee does not make a representation against the adverse entry after communication, it becomes final. (ix) The character roll can be acted upon before final disposal of the representation. There is no provision in the administrative instructions that action would await the final disposal of the representation. Such a view would militate against exigencies of public service. (x) If representation is ultimately rejected, the action taken on the basis of the confidential report would stand. (xi) If on representation, the adverse entry is set aside or substantially modified the case is to be reconsidered and earlier action taken on such adverse entry is to be quashed. 10 if a different view is taken on reconsideration and retrospective benefits are to be conferred. (xii) If the adverse entry is not communicated at all and if unusual action is taken on the basis of the adverse entry, a Government servant can ask for an appropriate writ seeking direction to the State Government to communicate the adverse action against the Government servant and may for quashing such adverse entry and action taken in reference to such entry. (xiii) An adverse entry made in the ACRs, in contravention of the instructions relating to that entry is non-est in the eyes of law. (xiv) Making of adverse entry in the confidential report is not equivalent to imposition of a penalty which would necessitate an inquiry or affording a reasonable opportunity before making it. (xv) While making communication of adverse entry the basis on which the adverse entry was founded must also be communicated. (xvi) Even if reasons of rejection of the representation against the adverse entries is not communicated however, the same must be available on the file. (xvii) The adverse entries can be acted upon even if not communicated unless malafide on the part of the authority is shown. (xviii) The guidelines and observations of the Supreme Court in Amar Kant Choudhury (supra) have to be kept in consideration by the State Government or by the 11 instrumentalities of the State or authorities of State or Corporation to avoid delay and consequent inconveniences arising from the present system relating to representations against adverse entries. 6. Heard learned counsel for the petitioner and learned Senior Advocate General for respondents-State. I have gone through the entire record of the case. The respondents could not give proper justification regarding awarding adverse remarks against the petitioner and the respondents failed to point out the Guidelines issued in that regard. In my respectful consideration, nothing has been brought on record in support of awarding of the specific adverse remarks. Therefore, in the interest of justice, it is necessary to direct that if the petitioner submits a representation to the concerned authority alongwith certified copy of this order and requisite documents in support of his version within four weeks from today, then, the said representation shall be considered/decided by the concerned authorities within two months thereafter by a speaking order. However, till disposal of the representation, the said adverse remarks indicated (in Annexure P-8 dated 31.03.1997) shall not come in the way while extending any benefit in service conditions of the petitioner. In view of the above observations, the petition is disposed of. ( R.B.Misra ) Judge July 13, 2009(BRB)