CWP 831/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench Reportable ** Civil Writ Petition No.831/2006 Brijesh Kumar Chandolia Versus State & Anr. Date of Order ::: 19/05/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Manish Sharma for Mr. SP Sharma, for petitioner Mr. JK Agrawal, Addl.Govt. Advocate, for respondent State Instant petition has been filed for quashing order dt.05/11/05 (Ann.8) of rejection of his representation dt.22/01/04 (Ann.2) seeking expunction of adverse remarks communicated to petitioner vide letter dt.22/12/03 (Ann.1). Petitioner is a member of Rajasthan Administrative Service and after his regular selection joined service on 29/12/1997. During annual appraisal assessment year 2002-03, for almost seven months from September to March, 2003, petitioner had worked as Sub-Divisional Officer, Dausa, for which, remarks in his annual performance appraisal report (“APAR”)were made by Reporting Officer and conveyed vide letter dt. 22/12/03 (Ann.1), as alleged considering them as adverse ad infra: भाग-।। - 1- सामाÛ य मुã यांकन :- नागǐरक अिधकार पऽ के ǑबयाÛ वयन मɅ नेतृ× व का अभाव रहा । 3- È या आपकȧ जानकारȣ मɅ ऐसी कोई बात आई है जो अिधकारȣ कȧ स× यिनं टा अथवा उसके Ʈारा क× त[å य का ईमानदारȣ से पालन करने कȧ योÊ यता पर ूितकूल ूभाव डालती है ? यǑद हां तो उसके बारे मɅ ǒववरण:- संǑदÊ ध "उपखÖ ड Û यायालय के कुछ िनणȸत ूकरण िनयम ǒवǾƨ सरकार के ǒवǾƨ फैसले Ǒकए गए ǔजस कारण अिधकारȣ के ǒवǾƨ कािम[क राजः व ǒवभाग को 16 सी सी ए अÛ तग[त आरोप पऽ यहां से ूः ताǒवत Ǒकया गया CWP 831/06 //2// Against aforesaid remarks, detailed representation was submitted by petitioner pointing out obligation casted upon reporting/reviewing officer as per Clauses (14) & (15) of Instructions issued by State Government regarding APAR of Government servants holdings in State/Subordinate/Ministerial & Class IV Services, vide Circular dt.30/03/1976 (“for short, “APAR instructions, 1976”), as per which there is responsibility of Reporting Officer (1) to carefully consider norms prescribed and/or duties demanded from the Reportee and (2) to make objective assessment of work & qualities but also to suggest to the Reportee either verbally or in writing, at all times necessary advice, guidance & assistance to correct faults and despite reportee being verbally/in writing informed, still persists failure to improvements in his performance of work, then only adverse remarks be recorded in his APAR and in this light, petitioner submitted that no such advice either verbally or in writing was ever conveyed by his reporting officer and for the first time, came across adverse remarks in question duly conveyed vide letter dt.22/12/03 (Ann.1). Petitioner in his representation also submitted that during period in question, District Collector, Dausa, for his efficiency, revenue & administrative work discharged, commented upon with appreciation letters and certificates issued on Republic day (26/01/03) and so also in July, 2003 – copies whereof were placed on record. As regards adverse remarks about initiation of proposed disciplinary inquiry, petitioner pointed out that decision was taken by competent authority not to initiate any disciplinary inquiry against him as is evident from order dt.16/10/04 (Ann.7). CWP 831/06 //3// Despite his detailed representation, the same was rejected by a non-speaking order dt. 05/11/05, petitioner has approached this Court by way of instant petition. Counsel for petitioner submits that there is a clear breach of APAR instructions, 1976 which casts obligation upon reporting/reviewing officer to act in accordance with norms, guidance and objective assessment as contained in Clause 14 & 15 of Circular dt.30/03/76 but in case of petitioner while recording adverse remarks in question, he was never conveyed either verbally or in writing from reporting officer about defects if any in his working or qualities in performance whereof, or any other complaint, if failed to take note of while discharging his duties as Sub Divisional Officer Dausa – in absence whereof, adverse remarks in question are not legally sustainable. Counsel further submits that what has been observed and conveyed as adverse remarks qua him vide letter dt.23/12/03 (Ann.1) is completely vague and as regards remarks made of orders being passed by petitioner as SDO Dausa against State Govt., for which inquiry U/r 16 of CCA Rules, 1958 was allegedly proposed as taken note of reporting officer while recording adverse remarks in CWP 831/06 //4// question, according to Counsel, it can only be a fact but in no manner can be considered as adverse remarks since it does not relate to his performance about integrity or other factors – devotion to duty, intelligence or ability of working, being considered by reporting officer and that apart, competent authority took decision not to initiate disciplinary inquiry against him, that being so, very communication and rejection of his representation in the facts of instant case is wholly arbitrary, apart from being in breach of instructions, 1976 but also violative of principles of natural justice. As regards performance of his work and qualities for the period in question, Counsel submits that petitioner has been communicated with appreciation certificate on Republic Day, 2003 and so also on 24/07/03 as is evident from Ann.4 & 5, whereby his performance at the same time has been highly commented upon and what has been conveyed adversely to him impugned from the material on record does not hold good. Respondents in their reply raised preliminary objection that against remarks recorded & communicated in question, petitioner CWP 831/06 //5// may raise grievance before reviewing authority despite his representation being finally rejected, vide order impugned herein. As regards merits, respondents averred in the reply that adverse remarks have been recorded by reporting officer after evaluation of the work of petitioner based on subjective satisfaction and even if alleged charges have been dropped, it would not favour him and authority is not supposed to record reasons for rejection of his representation. However, Govt. Counsel supports communication of adverse remarks in question and also rejection of his representation and submits that these are administrative matters and only right available to him is to have an opportunity before adverse remarks are placed in service record and once he was afforded with opportunity where he submitted representation which was considered by competent authority and has not found any justification to expunge it, interference in limited jurisdiction can not be made by this Court and reasons are also not required to be disclosed by the authority while rejecting his representation. I have considered contentions made by both the parties and with their assistance, examined material on record. Department of Personnel, State Government issued Circular dt.30/03/76 (APAR CWP 831/06 //6// instructions, 1976) containing the drawl and submission of APARs. Object of APAR is to make an objective assessment of performance of an employee – importance whereof is spelt out in para 2 of Circular ad infra: “Importance of Annual Performance Appraisal report : - Since the Government have accepted the principle that confirmation/crossing of efficiency Bar, promotion, grant of pensionary benefits etc. should be based on the assessment of the annual performance appraisal, this matter is of greatest importance for the efficiency and the morale of the service. It is in the interest of Government not less than the employees, the value of proper system of performance appraisal is recognized by all concerned.” Para 11 of APAR instructions, 1976 speaks of periodicity and performance of the Annual Performance Appraisal. Ordinarily the period of appraisal is the financial year. Para 11(iii) provides that two or more independent reports may be written by different reporting officers in the event of a change of reporting officer in course of the year, and in such case, each report should indicate precisely the period to which it relates. Clause 14 of APAR instructions, 1976 casts obligation upon reporting officer to make CWP 831/06 //7// objective assessment of the reportee while he considers to record adverse remarks in APAR and same is responsibility of reviewing officer also to discuss with reporting officer and who may countersign the report including adverse remarks or modify or expunge the remarks and the same has to be communicated to the reportee in terms of para 16 of Circular. Paras 14 & 15 of APAR instructions, 1976 read ad infra: “14. Responsibility of the reporting officer: (i) it shall be the duty of reporting officer to carefully consider the norms prescribed and/or the duties demanded from the reportee before recording his opinion. He should not form hasty opinions or arrive at conclusions based on insufficient date, much less hear say. (ii) He should not only make an objective assessment of his subordinates' work and qualities but also give to his subordinates at all times the necessary advise, guidance and assistance to correct their faults. He should indicate either verbally or in writing. The defects which have persisted his efforts to have them corrected. Adverse remarks shall be recorded in the Annual performance Appraisal only when the reportee persistently fails to show improvement. CWP 831/06 //8// (iii) while mentioning any faults/ defect, the reporting officer must also give an indicate to the efforts at reforms made by him by way of guidance, admonition etc and the result of such efforts. (iv) while filling up the column on over all assessment, the reporting officer must record the overall grading/specific categorisation of the employee i.e. “Outstanding”, “above average”, “average”, and “below average”. 15. Responsibilities of the review officer- (i) While it might be difficult for the higher officer to get to know a large number of employees two grades below him his over all assessment of the character, performance and ability of the reported officer if vitally necessary as a build in corrective. The judgment of the immediate superior, even though completely fair in its intent might some times be too narrow and subject to do justice to the employee reported upon. The officer superior to the reporting officer should therefore consider it his duty to personally know and from own judgment of the work and conduct of the officer reported upon. He should accordingly exercise positive and independent judgment on the remarks of the reporting officer under various detailed heading in the form of the report as well as on the overall assessment and express clearly his CWP 831/06 //9// agreement or disagreement with those remarks. This is particularly necessary in regard to adverse remarks if any, where to the opinion of the higher officer shall be construed as the correct assessment. (ii) Where the reporting officer has recorded adverse entries the reviewing officer may discuss with the reporting officer such adverse entries, and (a) may countersign the report including the adverse entries, or (b) modify or expunge the adverse entries.” Administrative instructions may not have statutory force but are required to be substantially complied with. Government used to issue instructions to its Officers who are bound to act in conformity with administrative instructions and whose actions are the actions of the Government, therefore, they are bound by those administrative instructions; and administrative authorities which declare that their actions will be governed by certain standards must adhere to those standards. Departure from such instructions will vitiate the action taken by such authority which has to be seen in each case. It is true that these are administrative instructions issued by State Govt, vide Circular dt.30.03/76 are to be followed in substance and minor breach of these instructions or slight CWP 831/06 //10// deviation therefrom may not vitiate the action but at the same time, if defeats very object and purpose for which instructions are issued for guiding the reporting/reviewing officers who have to take note whereof before recording adverse remarks in APARs. As regards scope of jurisdiction of this Court in examining adverse remarks communicated and rejection of representation by a non-speaking order, Apex Court in Union of India Vs. EG Nambudiri (1991(3) SCC 38) inter-alia observed that in absence of any rule or administrative order, competent authority is not under obligation to record reasons while rejecting representations against adverse remarks but at the same time, it does not give absolute discretion or liberty to pass orders without there being any material or record to support such adverse remarks and if such an order of rejection is challenged before a Court of law, it is always open for competent authority to place reasons before the Court which may have led to rejection of representation against adverse remarks and after production of such evidence before the Court, competent authority may justify such action. Apex Court observed ad infra: “10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any CWP 831/06 //11// statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the office awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law, it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of CWP 831/06 //12// the representation. It is always open to an administrative authority to produce evidence alinude before the court to justify its action.” In instant case, no material has been placed by respondents alongwith reply before this Court to justify their action in rejecting representation of petitioner. It is true that remarks recorded are based on subjective satisfaction but it should always be after objective assessment of the work of the reportee. What has been communicated to the petitioner quoted (supra) is completely vague and there is no material made available for perusal of this Court which may support adverse remarks. It has been adversely remarked that petitioner lacked in general assessment and supervision while issuing certificates of citizenship but no record has been placed on record which may support such remarks. As regards remarks of doubtful integrity, it is based on observations made while recording that certain orders were passed by petitioner against State Govt. and for which disciplinary inquiry was being proposed to initiate. At the same time, it has come on record that State Govt. has proposed not to initiate inquiry and rightly so because of those orders passed in his capacity while acting as quasi-judicial authority, which being appealable and reviseable and that apart CWP 831/06 //13// nothing has been imputed of any biasness in passing such quasi judicial orders. Taking note of his appreciation for the year in question and communications of certificates issued on Republic day, 2003, certainly shows his good performance for the period during which adverse remarks impugned have been communicated. No material has been placed on record to show for perusal of this Court showing that reporting officer had ever issued verbal or in writing any communication to the petitioner to which he was under obligation as per para 14 of APAR instructions, 1976. Even comments of reporting officer which must have been sought upon representation made against adverse remarks, have also not been placed on record. Looking to the facts and circumstances appearing in various documents by which performance of petitioner has been commented, it cannot be said that reporting officer who has recorded remarks regarding general reputation was at all justified in recording such adverse remarks impugned. General assessment of officer cannot be commented upon adversely in cursory manner, as has been done in instant case and such remarks are absolutely vague without any material forming requisite opinion and in no manner can be sustained. This court has come to the conclusion that there is no CWP 831/06 //14// material available with the reporting officer to form opinion for recording such adverse remarks, impugned against petitioner. In view of aforesaid discussion on merits, preliminary objection raised by Govt. counsel stands over-ruled. Consequently, writ petition succeeds and is hereby allowed. Communication of adverse remarks vide letter dt.22/12/03 (Ann.1) and rejection of his representation against thereto vide order dt.05/11/05 (Ann.8) being not legally sustainable, are quashed and set aside and adverse remarks recorded against petitioner in his APAR of year 2002-03 are hereby expunged as if never recorded. Petitioner will be entitled for consequential benefits which may inure in his favour in view of adverse remarks being expunged (supra). No order as to costs. (Ajay Rastogi), J. K.Khatri/p14/831CW06-1905acr.doc