.. AMAR KANT CHOUDHARY

STATE OF BIUAR & ORS.

January 3, 1984

(E.S, VENKATARAMIA!l , AND R, B. MISRA, H.]

Naturaltt1usticr-ruie o.f-a.dver~e report in confiifential .roil 'nl?f to be acted upon to deny proniotional ojJpOrtunitieS un!Css. con11nt1nicated and explanation con~

_s, idered, a.ciing _otherwise vitiates: .decision. .

The appellant, a directly recruited Deputy, Superintendent of Police' in the Police Departmen, t .of the Respondent State was conSidered in 1976 for appointment as a ml;'.n1bcr of the Inl.ijan Police SerVice under the pr1Jvisions of the Indian Police ·

Service (Recruitn1ent) Rule~, 1954 read with.the Indian Police Service (Appointment by pro1notion) Regulations, 1955. The sclectioll' Committfe did not include the. appellant in the select list because of ·n adverse entrY. i~ his confideiit.ial ro1i. of

1973-74. T.he appellant was cOrrmunicated the said adverse entry only in' J977. which was later on expunged by the .state Governn1ent in DCCenlber 1980. There were also adverse entries iri the Confidntial foll of the appellant.for the year 1974-75

Which were communicated tb him in 1976 and which we; e aJso later on expunged by the.State Government in February, 1978.and Octobet 1980. 'ThC Selection Con1n1ittee nlet again in March 198J, bi.It this tin1e illso did not include the appellant in the slect. list while son1e of his. junio.i:s were included .. The appellant. qu_estioned

the validity of the decision of the Sclecti-On- Colnmittce in a writ petition before the !Jigh Court: The High Court disnlisscd the 'writ pe.iition 'at the stage of adn1ission. ,. Heo, cethis appe:i.L ln this appeal the apj:icllant urged that the Selection

ComcTiittee was wrong in relying upon the adverse entries , vhich had been n1ade in his collfidential rOI.ls \vhich had noi beep either. con1munica.ted to hin1 or against which he.had n1ade representation \vhich hadr-emained undisposed Of and.which had been subseqlleJ?.tlY expunged. ' '

Apowing ihe apµ, eal,

~Ef,, D: The principle is. \veil settled tha~ in acord<ince With the rules of natural justice; an adverse rejJort n a. c011.fidenial roll cannot be acted upon to deny promoti.o"nal oifportunities Unless it is comri; tUaicated to the person concerned

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so that h6 has an opportunity to improve hiS \vork and conduct or to explain the

G.> circumstances leading to •the report. Suen all opporturiitY:iS not <l; Il empty formality,

its object, partiillly, being to enable the superior authorities to deeide on, a consideration of the explanation o.fferedby the Person concerned,. whether the adverse . . . report is justified. [302 F]

Gurdial Singh FUji v. State_ of unjab & Ors., [1979] 3 S.C .. R:.518; referred to.

Jn the instant c.'.l.se, the case of the appeilant for pro1notion to the Ttldian

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Police "Service Cadre .had not been considCrcd by the committee in a just and fair way and his case has been disposed Of contrary to the principles laid dow9 in the Gurdial Singh Ffjji's case.

The decisions of the Selection Committee recorded at its meetings in which thci case of the appellant was Considered are vitiated by reason of reliance being placed on the adverse rearks which were later on expunged~ ThC High-Court committed an error in. dismisSing the petition of the appellant. _The appellant hp.s made out a case for reconsideration of the question of his prornotion. to the Indian Police Service adre of thC State of Bihar as on Dece'mber 22, i976.

The Selec.tion _Co1nn1iUee has .now to /econsider 'the case of"'the -appellatit accordingly. [104 B-G]. '

R.L. i3utail v. Union of India & Ors., (1971] 2 S.C.R. 55. distinguished.

In order tO, avoid a contingency; as arose.i~ this case, the Gofcrnment 1nay consider the introduction of a system in which the officer who has to make entries in thci confidential roll-1nay be required to record his remarks. in the presence of the.,.Officer against Whom remarks are proposed to be made after giving him an opportunity to explain ahy circumstance that may apPear to be against him with the right .to -niake rePrcsentation to higher authorities agairlst any °adverse remarks. Another system which may be introduced. is to ask the officer who records the confidential remarks to serve a cop"y of such remarks on the officer concerned before the confidential rOU is sllb1nittcd to the higher authorities so that hiS iespresentation against the remarks may also reachthe higher auth9rity shortly after th_e confiden- . tial roll is received. This would curtail the delay in taking action on the representa- iton. [105 B-0] .

CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 8491 of .1983.

From the Judgment and Order dated 5th October, 1982 of the .. ~Patna High Court at Patna in C.W.J.C. No. 1420 of 1982 .

. P.R. Mridul, and M.P. Jha,. for the.Appellant.

i. B.B: Singh, for the Respondents

The Judgment of the Court was delivered by,

. VENKATARAMIAH, 1: This is an appeal by special leave against the order dated: October 5, 1982 inc.W.J.C. No'. 1420 of 1982 on the file of the High Court of Patna dismissing the petition filed by the .G appellant under Article 226 of the Constitution.-

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. Jn 1973 H he was eligible to be considered for appointment as a member of the Indian Police Service under the provisions of the Indian.Police Service

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A.K. CHOUDEARY v. BIHAR (Venkataramfah, J.) . 301

(Recruitment) Rules, 1954 (hereinafter referred to as 'the Rules') read with the Indian Police. Service (Appointment by Promotion) Regulations, !955 (hereinafter referred to as 'the Regulations_') framed under sub-rule (1) of Rule 9 of the Rules. His case was placed before . the Committee constituted 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 not be included in the select list as he was junior 50 thos_e who were included intheselect 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 b, v the _Committee for superseding the appellant based on. the confidential roll were these : ·

"Delayed disposal of pending papers and supcrv; sicn notes. 'Inadequate control over office, judgment," initiative, sense of responsioility and anagement reported to be just fair. Censured by State Govt. order Cit. 20th Oct., 1975."

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The Selection Co_mmiitee took_ the decision to supersede the appellant at its meeting held on Decembe.r 22, 1976 in. view of !le above entry in te confidential roll of the appellant. It. is not disputed

tht the_ said adverse entry was communica.ted to the appellant in the year 1977 after the above meeting was over. It appears thaf there were also adverse entries in the annual confidetial roll of the appellant . . for the year 1974-7-5. They were communicated to tlfe appellant in the year 1976. The appellant made representations in respect of.both the adverse entries in time, His main 'grievance was that tly . had been 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 Governent on December 3, 1980 and the adverse entries in the confidential roll for the, year 1974-75 were expunged by two orders dated February21, 1978 and October 7, J980. There was.no meeting of the Selection Committee from 1977 to 1980.

It, however, met on March ll/12, !.981. on thi; occasion the appellant represented to the Committee \jlat the adverse entries in his confidential rolls had been removed by the State Governmrnt by various orders and requested them to consider his case for promotion to the Indian Police Service. Cadre. . On this occasion ti1e Committee did not look into the confidential rolls of the appellant for the years 1979-80 _and 1980:81 which eontaind entries' very favourable to the appellant for no fault of the appellant .. The' Co.mmittee,' however,

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classified bi!n as.'good' .but did not inciude. him in the sekct list while

some of his juniors, were included. The appellant 'represented to the 'committee and the State Government ag,'.inst tl; e decision taken by the Committee. -the Committee again 'met on October 14, 1981.

When nothing came outof therepresentations made by him,' tl'.c appellant filed.a writ petition questioning th validity. of the dccisioi:s of the Selection Committee before the,. High Court of Patna. The petition wasdismissed at.the stage of admissicn. This appeal is filed by special leave against the. ordef of the High Court;

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The main point urged before us is that the Selection Committee 411 had committed, ah illegali.ty in rejccting th.c daim .of the appl!ant fer being included in the select list in th~ Y.ear 1976 by relying upcn tle adverse entries whiCh had been made. in his confidential rolls which had' not been either' .commu;1icated to him or against which. he had .made representation which had remained undisposcd of and which _.had been subsequently expunged. .·

' The true legal position governing such cases is laid down by this Court in Gurdial Singh Fijji Y. State~[ Punjab & Ors.'''. which was a case arising under. the Indian Adminis.trative Service (Appointment ·

by Promoti:in) Regulations, 195~ which more or Ics.s correspond to the Regulations applicable to the Indian Po life Service.

Jn tbe 'aboyc case Chandrachud,.C.J. has observed thus : ' . . .

"The principle is weJl'.settled that in accordanc~. with the rules of natural jlistice, all adverse. rcpcrt ln a cOnfidtntial roll cannot be. acted upon to deny promotional opportu.nities unless itfs communicated to the .person con.cerned so. that. • he has .an opportunity 'to improve his work arid conduct or . fo explain: the circumst.ances leadjng to the )'eport. Such an oppoitunity is not _an empty fotmality, its object, .par- . tial!y, 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. Un- , . fortunatel'y, for one reason or another.,. not arising out of any fauli on the: part of the. appellant, tliongh the adverse report was communicatd to hiin, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances It i's didilcult to suppoti the non-issuance of. the integrity certificate to

(I) [1979] 3 S.C.R. SIS.

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A.K. CHO.UDIIARY v. BIHAR cvenkataramieh, f)' 303

the appeJlimt. The chain or reaction .began with the adverse A report and. the infirmity in the link -of causation is that no one .has vet deciccd whether that rcpcrt was justified. We cann.ot speculate, in the absence cif a prper p!ea<, ling, whether the appellant was not four.ct suital;'e _otherwise, that. is to say, for reasons other than. those connected with the n<Ynisuarice of an .integrity .certifiC'ate to hin1." B . . ·. . .

It is ot disi:.uted that the c'.&csilirnticn d" cfiicers whose ca><s are taken up forconsiderati()n into 'outstanding', 'very .l'ccd', 'geed' or 'bad' etc. for .pmposes o( promotion to tl\e Indian 'folice ervice Cadre is mainly based upon the remarks in the confi<; lential rolls.

On December 22; J 976, when the Selection Committq' met, the adverse remarks, in the onfidential roll for 1973-74 had. not peen communkated.and the appellant's representatio11 1egarding a_dvetse remarks in the confidential roil for the year J<;74-7) and censure against him had not. been disposed .cif clthough it is alkged that one

Shri Yamuna Ram agai1lst whon1 dso r.dvcrse ren1rrks had been . . made was included provisicnally in, the '°!eel list When the Selection Committee met on March 11 and 12, 1981 despit~ State. Governm!'nl's suo nrofli decision not to retain actverse rem.arks for 01e year 1976-'77 on records, the same had not been removed froll) the confidential roll, This must have infim.nced ihe decision of the Selection Com- 1™ttee. lt is also seen that the confidential rolls of the appella; it for the year l 979-80. and' 1980-81 which contained eniries favour.able to the 'lppellant were n; t placed before the Selection Committee.

On October 14, 1981 when the Selection Committee met, it does not appear to haw considered _the representation made by_ the appellant against his non-selection.. hi addit.ion to all these, the State Government has expunged t\1e adverse remarks by its orde!S made from time. to time. These facts are not controverted by .the respondents.

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The fac'ts of this case are distinguishable fron1 the facts irivolved

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 appel\ant !hrein for the year "1964 containd an adverse entry and he had made a representation regarding it. When the Departmental Promotion Committee met in March, '1966, the appellant's . represetation regarding the adverse entry of ]964 was not placed before it and a decisio'n adverse to the ppellant was taken by the Commiitee witl1ont reference to the said 1; epresentation.. The

(1) [!971] 2 S.C.R. SS . . .

appellant contended before this Court tl\at th~ omission to consider his 'representation before th~ date of meeting of the Commiitee vitiated "" its decision. The Court held that the .omission either to place the said representation before the Committee or its '.•non-corisideratin

before the date of the meeting had no effect on the decision of the Committee as the represetation had actuaily 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. _Herc 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 Butail's case (supra) was that if in such a case a rep- . . . . resenta.tion were to be accepted .and. in consequenc' the. confidential report .was altered or the adverse.entries were expun.ged 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 t.o the uncontroverled 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 consideied 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 Fijji's case (supra). The decisions of the Seleo- -1' . tion Committee Tecorded .at its meetin-gs in which the case of the appellant was consideretl are vitiated by reason of reliance being ( placed on the adverse remarks which were later. on expunged. The 1 High Court :committed . an error in dismissing the petition of the appellant and its order is, therdorc, liable to be set aside. We accorditigly set aside the order of the High Court. . We hold that the appellaJ¥ has made oµt a case for reconsideration of the question )- • 0f his promotion tci .the Indian Police Service Cadre of the State of 'Bihar as oil" December 22, 1976 and if he is not elected as on that date for being considered again as on March 12, 1981. If he is not sejected as on March.12, 1981 his.case has to be considered as on October 14, 1981. The Selection Committe has now to reconsider the case of the appellant accordingly after taking into consideration the orders pased by the State "Government subsequently on any adverse entry that may have heen mde earlier and any other order ·-/. of similar nature pertaining to the service of the appellant If on such reconsideration the: appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a .dirction to the respondents to reconsider the case of the ..

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A.K. CHOUDHARY v, BIHAR (Venkataramiah, J.) . 305

appellant as stated above. We hope that the above direction will be complied with expeditiously but not later than four months from today. ·

Before concluding we wish to state that the Central Government and the State Governments should now .examine whether .the present system of maintenance of confidential rolls should be continued.

Under the present system, entries are first made in the confidential roll of an officer b.ehind. his back and then he is given an opportunity to make a representation against any entry that may have been made against him by communicating the adverse. entry after considerable delay. Any representation made by him would be considered b~ a higher authority or the State Government or the Central Government, as the qse may be, some years later, as it has happened in th_is' case, by which time any evidence that may be ihere to show that the entries made were baseless. may have vanished. The preqicament in which .. the officer against whom .advese remarks are made. is then placed can easily be visualised .. Even the authority which has got to pass

orqers on the representation.of the officer will find .it difficult to deal with the matter satisfactorily after a long interval of time .. Jn the meanwhile the officer concerned would have missed many opportuties which would have advanced 'his prospects in the serviCe.. Jn order to avoid such a centingency, the Government inay consider the introduction of a systein 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 remarks are proposed to be made after giving him an opportunity to' explain any circumstance that may appear to be agafost him with the righ!'to make represe, ptation to higher authori.ties against any adverse remarks. This cou.rse may obviate many time~ totally baseless remarks being made in tJie confidential roll an"d would minimise the unnecessary snffering to which the officer concerned will be exposed. Another system which. may be introduced is. to ask the officer who rec.ords the cc; mfidential 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 th~ remarks may also reach the higher authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation. Suspensions,· adverse remarks in confidential rolls and frequent transfers from one place to another are ordered or made many a time without justification and without giving a reasonable opportunity to the officer concerned and such actions surely result in the demoralisation of the services. Courts can. give very little relief in such . cases.

The

SUPREME COuRT REPORTS

[1984]2 S.C.R.

A Executive itself should, therefore, devise effective mearis to mitigate the.hardship caused to the officers who are subjected. to such treatmen\. "* These questions require to be examined afresh in the light of the experience gained in. recent years and solutions should be found to ell1,; inate as fr as p.ossible 6omplaints against mi; use of these powers by official superiors who may not be well disposed towards the officer

B . against whom such action. is taken. It is needle<is to state that a non-disgruniled bureaucracy adds to the efficiency of administration .

. The appeal is accordingly allowcc! with 'costs.

H.S.K.

Appeal allowed.

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