REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 14, 2010 State of Haryana and others .....Appellants VERSUS Ram Singh ....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. Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr. C.L.Katyal, Advocate, for the respondent. **** RANJIT SINGH, J. This is another case where the issue in regard to recording of the adverse remarks in the annual confidential report would arise. Being aggrieved against the view taken by the Trial Court as well as by the first Appellate Court, the State has filed this Regular Second Appeal. Sub Inspector Police had filed a suit to challenge the adverse remarks recorded in his annual confidential report for the period from 2.10.2003 to 28.1.2004. Prayer was to expunge these REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 2 }: remarks and not to take these into consideration for denying promotional opportunity. The respondent-plaintiff was working as Assistant Sub Inspector and was issued memo dated 16.2.2005 conveying the adverse remarks for the period from 2.10.2003 to 28.1.2004. His representation against the same was rejected on 1.6.2005, against which he filed an appeal, which was rejected on 17.8.2005. The respondent-plaintiff had accordingly challenged these adverse remarks on various grounds with a prayer to withdraw these memos. The appellants contested the suit. It is stated in the written statement that the adverse remarks were recorded in the interest of justice and were on the basis of a performance. It was pointed out that the respondent-plaintiff was habitual in committing continuous misconduct and misbehaving with public during visits to the police station. Reply disclosed that there were several verbal complaints against the adamant behaviour of the respondent-plaintiff with general public, which was adversely effecting the image of the police. Despite advice by the SP to mend his ways, the respondent- plaintiff did not show any improvement and rather put political pressure on senior officers for his posting. The respondent-plaintiff was so adjudged as unreliable officer, who could do anything to gain something for his ulterior motive. As per the reply, besides this ACR, reports for the period from 1.4.2002 to 31.3.2003 and from 2.10.2003 to 28.1.2004, were also not good and his service record was was also not satisfactory as he was awarded some punishments. On the basis of pleadings, following issues emerged and REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 3 }: were framed by the Trial Court:- “1. Whether the adverse remarks in the A.C.R of the plaintiff are liable to be expunged and defendants are liable to withdraw the adverse remarks made in memo issued to plaintiff and plaintiff is entitled to the relief of injunction as prayed for? OPP 2. Whether they were verbal complaints against the plaintiff as alleged? OPD 3. Whether the attitude towards subordinate and colleagues of the plaintiff was not proper? OPD 4. Whether the service record of the plaintiff had not remained satisfactory/upto the mark? OPD 5. Relief.” The Trial Court held that the adverse remarks were recorded in a casual manner. The suit was accordingly decreed. The State had filed appeal against the said judgment, which was dismissed and hence, the Second Appeal. Number of precedents have been cited in support of the respective stands taken by the parties. The State counsel has referred to the view expressed in various judgments that recording of annual confidential report is the subjective satisfaction of the Reporting Officer and the Courts have hardly any jurisdiction to interfere. The counsel for the respondent-plaintiff, on the other hand, would refer to large number of judgments to contend that there has to be some material for recording adverse remarks in the annual confidential report of an employee for ensuring fairness. To appreciate the argument, it would be appropriate to REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 4 }: notice the adverse remarks endorsed in the annual confidential report, which were subject matter of challenge in the suit. The adverse remarks under challenge reads as under:- “i. Reputation qua co-operation with the public: Not good and proper treatment with them. ii. Loyalty to the government without any : Loyal but tries political/communal feeling to put political pressure for personal gains. iii. Behaviour with subordinates and Not good relations with companion officers iv.General Control power and Slow management ability. v. Strength of command Slow vi. Trustworthiness Not trustworthy vii. Proficiency in parade No opportunity given by him to observe. He remained absent from the parade for which he was penalized vide letter No.54601/3 dated 18.12.2003. viii.Defects if any and whether the Used to put political same was ever brought to the pressure for posting and does not take REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 5 }: interest in the Government work.” I am not in a position to appreciate as to what material possibly one can have to substantiate the remarks made by the Reporting Officer as have been noticed above. The respondent- plaintiff was not having good reputation qua cooperation with public and proper treatment with them. This is something which would be in the knowledge of the Assessing Officer and there can hardly be any report or need to put an employee to notice. The respondent-plaintiff is termed as loyal to the Government but at the same time, it is recorded that he tried to put political pressure for personal gains. That would also be something, which will be in the knowledge and no materially possibly can be there. So would be the position regarding remarks of his behaviour with subordinate, which was referred as not good. Respondent-plaintiff was found to be slow in general control, power and management ability. His strength of command was also rated slow. This is an observation, which has to be made by watching the performance. Respondent-plaintiff was is also termed as not trustworthy. Thus, considering the nature of assessment, the view that the adverse remarks have to be based on some material or that these were casually made can not possibly be accepted. The Courts would be in no position to assess the performance of the employee to make any such observation or to comment on the assessment made in this regard. No doubt, in some of the cases, it was observed that before forming an opinion, the Reporting Officer writing the confidential report should share the information, which is not part of REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 6 }: record with the officer concerned but this could be when one is to make some assessment in regard to the integrity. There can also not be any dispute that the Reporting Officers are to have a judicious approach while recording adverse remarks, particularly on integrity. In large number of cases, however, the Court has held that recording of annual confidential report is a subjective assessment of the public servant and if there is any breach of instructions of the Government while recording the confidential report, then the report does not get vitiated. In this regard, reference can be made to 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 in R.S.A No.179 of 1985 (The State of Haryana and others Vs. Lajpat Rai) decided on 29.1.2010, had considered all these judgments, which were again considered in RSA No.2182 of 2009 (Ram Karan Vs. Haryana State and others), decided on 1.2.2010. 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 REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 7 }: 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 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 REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 8 }: 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. Learned counsel for the respondent-plaintiff, however, has placed strong reliance on the observation made in the case of Amrik Singh (supra). It is to be noticed that the Division Bench was dealing with the adverse remarks recorded in the ACR in the column of integrity and in this context, it was observed that there was no material on record to show that his integrity was doubtful. No reasons were given in the service record to show as to why his integrity was suspected. The remarks endorsed were also found wholly vague and made in casual manner, which is not the situation in the present case. The remarks endorsed in the confidential report have been noticed above. Most of the remarks are of such a nature that these would be on the basis of watching the functioning or performance on the basis of subjective satisfaction. There possibly can not be any material to support the remarks endorsed. REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 9 }: The counsel for the respondent-plaintiff has also cited number of precedents without caring to see if these would have applicability to the fact situation. Reference is made to V.D.Gaur Vs. State of Haryana, 1991 (3) SCT 148, P.K.Shastri Vs. State of M.P. And Ors., 1999 (5) SLR 1, State of Haryana Vs. Karan Singh, 2002 (1) RSJ 109, Head Constable Randhir Singh Vs. State of Haryana and others, 2002 (1) RSJ 115 and Ram Murti Vs. State of Punjab and others, 2003 (2) RSJ 422. The observations made in V.D.Gour's case (supra) were concerning the remarks of doubtful integrity endorsed in the report where it was observed that reasons for recording remarks should be disclosed. These observations primarily were on the basis of instructions issued by the Government. As noticed above, instructions, if any, are for internal functioning. Making of adverse remarks is not equitable to punishment that there would be a need to disclose material. The remarks in the case of V.D.Gaur (supra) were regarding integrity, which is not the case here. The Hon'ble Supreme Court in P.K.Shastri's case (supra) appears to have made general observations in regard to the manner of recording adverse remarks in the annual confidential report. Observation is that the authority directing such remarks must first come to the conclusion that the fact situation is such that it is imperative to make such remarks to set right the wrong committed by the officer concerned. It is further observed that a decision in this regard must be taken objectively after careful consideration of all the materials, which are before the authority directing the remarks being REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 10 }: entered in the C.Rs. The remarks made in the confidential report in this case have been noticed above. No submission was made to urge that that remarks have not been made carefully or that these were not objective. In Karan Singh's case (supra), the court has observed that a judicious approach is required on the part of the 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. Similar is the ratio of law in the case of Head Constable Randhir Singh (supra). As has been observed above, there possibly can not be a material to support the remarks which were endorsed in the present case. If the respondent-plaintiff was found `slow', what material can be there in support. Similar is the position about other remarks. In Ram Murti's case (supra), no basis were found to support the remarks of doubtful integrity and so directions were issued to expunge the same, which is not the position in the present case. Thus, none of the judgments relied upon by counsel for the respondent are attracted to the facts of the present case. The view taken by the Courts below can not be sustained. Substantial question of law in regard to the manner of recording of confidential report and whether these are basically recorded by way of subjective satisfaction of the Reporting Officer would arise in this case. The view that would emerge from the series of judgment is that basically recording of annual confidential report is the subjective satisfaction of the Reporting Officer and the Courts have hardly any jurisdiction to interfere in such cases. REGULAR SECOND APPEAL NO.4914 OF 2009 (O&M) :{ 11 }: The Regular Second Appeal is accordingly allowed and the question of law is answered accordingly. The judgments passed by the Courts below are set-aside. May 14, 2010 ( RANJIT SINGH ) khurmi JUDGE