Law Web: Whether annual confidential report is vitiated on the ground that adverse remarks did not contain specific instances?

These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case, the officer making the order has to give a reasonable opportunity to the Government servant to present his case. The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that therefore, the confidential reports are vitiated.

Allahabad High Court

Desh Bhushan Jain vs State Of U.P. And Anr. on 6 July, 2007

Equivalent citations: 2007 (4) AWC 3209

Bench: R Agrawal, V Nath

1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Desh Bhushan Jain, seeks the following reliefs:

(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 29.4.2005 as communicated to the petitioner on 2.5.2005 (Annexure-3 to the writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to ignore the order dated 29.4.2005 as communicated to the petitioner on 2.5.2005 (Annexure-3 to the writ petition).

(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to grant all consequential benefits to the petitioner ignoring the order dated 29.4.2005 with 24% interest per annum.

(iv) Issue any order suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(v) Award cost of the petition in favour of the petitioner.

2. Briefly stated, the facts giving rise to the present petition are as follows:

Facts of the case:

According to the petitioner, after obtaining degree in law, the petitioner started practising in the field of law. The Allahabad High Court conducted selections in the year 1995-96 for the Higher Judicial Service. The petitioner also applied and he was selected and appointed directly on 3.8.1996 as a Higher Judicial Service Officer. His first place of posting was at Moradabad as Additional District and Sessions Judge wherein he remained posted upto 5.6.2000. He was transferred to Farrukhabad and joined there on 7.6.2000. However, subsequently he was posted at Nalnital where he joined on 9.6.2000. He remained posted there till 2.9.2001 when he was transferred to Saharanpur where he remained posted from 4.9.2001 to 17.11.2003. Thereafter, he was posted as Special Judge, SC and ST, at Basti, which post he held from 19.11.2003 to 6.6.2005. He was appointed as Additional District and Sessions Judge, Court No. 1, Basti from 6.6.2005, which post he held till the filing of the present petition.

3. According to the petitioner, while he was posted at Saharanpur, the then District Judge, Saharanpur reported adverse remarks for the period 1.4.2003 to 17.11.2003. However, in respect of the preceding years, i.e., 2002-03, the same District Judge, Saharanpur, has himself given good and favourable remarks to the petitioner even certifying his integrity. The petitioner feeling aggrieved against the alleged adverse remarks for the period 1.4.2003 to 17.11.2003 reported by the District Judge, Saharanpur, preferred a representation on the administrative side before the Allahabad High Court through the Registrar General, respondent No. 2. The petitioner sought expunction of the adverse remarks.

4. The matter relating to recording of entries in the character roll of the petitioner for the year 2003-04 came up before the Administrative Judge, Saharanpur and the Administrative Judge recorded the following entry in the character roll of the petitioner:

The work and performance of the officer in the working days is satisfactory. He has good relation with the member of the Bar and brother officers. He had made regular inspections which were effective. He is a fair and impartial officer. Disposal of cases are good. On overall assessment he is rated to be a good officer.

Integrity certified.

5. It appears that the representation preferred by the petitioner against the adverse remarks reported by the District Judge, Saharanpur, was not specifically disposed of by the Administrative Judge and had, therefore, remained pending. The representation was placed before the Administrative committee. The administrative Committee, in its meeting held on 6.4.2005, had been pleased to reject the said representation, which order was communicated to the petitioner vide letter dated 29.4.2005. The order of the Administrative Committee, as communicated to the petitioner is reproduced below:

The remarks of the District Judge be restored. The overall assessment of good and certificate of Integrity given by then Hon'ble Administrative Judge is overruled by the Administrative Committee. The representation of the officer is thus rejected.

6. The adverse remarks as reported by the District Judge, Saharanpur, for the period 1.4.2003 to 17.11.2003, pertaining to the year 2003-04 as also the order of the Administrative Committee, reproduced above, are under challenge in the present writ petition on the ground that the same are patently illegal, contrary to law and violative of Articles 14 and 16 of the Constitution. Further, as per the circular letter of the High Court, Annual Confidential Report for the year 2003-04 cannot be segregated in two parts as the same is against the concept of service jurisprudence. The alleged adverse remarks which had been recorded in the service record of the petitioner, is patently misconceived, contrary to law, besides being perverse and contrary to material on record and cannot be sustained as they are self contradictory and appears to have been awarded in a casual manner without assessing the true aspect of the matter. The adverse remarks have also been challenged on merits. Further, the Administrative Judge who is the authority to record entries in the character roll of the petitioner, having given good entry, the adverse remarks reported by the District Judge stood wiped off and therefore, nothing remained for consideration before the administrative committee and the administrative committee had no power of review of the good remarks given by the Administrative Judge to a judicial officer, like the petitioner. The order passed by the Administrative Committee is, therefore, patently illegal and without jurisdiction.

7. In the counter-affidavit filed on behalf of the respondent No. 2, it has been stated that the District Judge, Saharanpur, had recorded the adverse remarks for the year 2003-04 in column Nos. 2(a), 2(b), 2(d), 2 (e)(v), 2(h), 2(i), 2(m), 3 and 4, which have been reproduced in the said counter-affidavit. As the representation remained undecided by the Administrative Judge, the same was placed before the Administrative committee under the orders of the Hon'ble Chief Justice, dated 27.1.2005. The Administrative Committee, in its meeting held on 26.4.2005, had passed the order rejecting the petitioner's representation and restoring the remarks of the District Judge and overruling the Administrative Judge in respect of the entry given by him. The adverse remarks recorded by the District Judge, Saharanpur, for the period 1.4.2003 to 17.11.2003, have been Justified being based on objective assessment of work and conduct of the petitioner who had miserably failed to point out any error on the face of the record. The District Judge, Saharanpur, was competent to record his remarks in annual confidential report as he had seen the petitioner's work and conduct for more than three months. The jurisdiction of the Administrative Committee to consider and decide the representation made by the petitioner against the adverse remarks recorded by the District Judge, Saharanpur, has been justified on the ground that if adverse entries are awarded by the District Judge, the judicial officer who feels aggrieved/dissatisfied, may make his representation and the representation so made is placed for consideration before the Hon'ble Administrative Judge of the Sessions Division concerned. In the case at hand also, the petitioner's representation against the remarks recorded by the District Judge, Saharanpur was placed before the Hon'ble Administrative Judge who though awarded final remarks, did not pass any order on the representation. Since final remarks were awarded by the Hon'ble Administrative Judge, Saharanpur but no order was passed on the representation, therefore, the matter was placed before the Hon'ble Chief Justice who, vide his order dated 27.1.2005, directed to place the matter before the Administrative Committee. Accordingly, the matter was placed before the Administrative Committee and in its meeting held on 6.4.2005, the Administrative Committee passed the impugned resolution rejecting the representation and confirming the adverse entry recorded by the District Judge and overruling the entry of the Administrative Judge.

8. Vide order dated 7.8.2006, the Court directed the learned Counsel appearing for the High Court to obtain instructions on the question as to who is the appropriate authority to record annual confidential report of the judicial officer. A supplementary-affidavit, affirmed on 15.9.2006, has been filed on behalf of the respondent No. 2, in which it has been stated that under the circular letter No. C-7-2006 dated 1.3.2006 annual confidential report/adverse remarks of the judicial officer are recorded by the District Judge concerned. However, under Chapter III, Rule 4B(1) of the Allahabad High Court Rules, 1952 (hereinafter referred to as "the Rules of Court"), the Administrative Judge awards/records/reviews the annual confidential report/adverse entry of the judicial officer of the Judgeship concerned. Under the order dated 10.6.1997, passed by the Hon'ble Chief Justice, the representation made against the adverse remarks awarded by the District Judge is to be placed before the Hon'ble Administrative Judge who was incharge of that Sessions Division where the officer was posted at the time when those remarks were awarded. The order further provided that if the remarks of the District Judge are subsequently considered and final remarks are awarded by the Administrative Judge, the remarks of the District Judge shall be deemed to have merged and in such event, the representation against the adverse remarks shall be placed before the Administrative Committee. As against the adverse remarks recorded by the Administrative Judge, under Rule 4B(3) of the Rules of the Court the same is to be communicated to the officer concerned who may make his representation, if any, within a month whereafter the adverse remarks as also the representation shall be placed before the Administrative Committee for decision.

9. During the course of hearing, a question cropped up regarding the practice of this Court on the administrative side in dealing with the representation where the District Judge has given the adverse remarks to a judicial officer and without adverting to the representation made by the judicial officer, the Administrative Judge awards the good entry. The Court, vide order dated 4.10.2006, directed the learned Counsel appearing for the High Court, respondent No. 2, to bring on record the practice of the Administrative Committee on such matters by means of an affidavit. The Court further directed for bringing on record the entries awarded to the petitioner in previous as also in subsequent years, both by the District Judge as also by the Administrative Judge.

10. Pursuant to the aforesaid direction, the respondent No. 2 had brought on record the practice of this Court by means of filing supplementary-affidavit-II. In the said affidavit, two instances have been given where the Administrative Committee had overruled the good entries given by the Administrative Judge and had restored the adverse remarks made by the District Judge while considering the representation made by the officer concerned against the adverse remarks given by the District Judge. It may be mentioned here that two Instances given have been considered by the Administrative Committee in its meeting held on 6.4.2005 and 29.11.2005. The annual confidential remarks given to the petitioner for the years 1996-97 to 2005-06 have also been filed alongwith the said supplementary-affidavit. It has been stated that for the years 1996-97, 1997-98 and 1998-99, there were no remarks from the Court.

11. In the course of hearing of the writ petition, upon a perusal of the supplementary-affidavit-II filed on behalf of the respondent No. 2, the Court found that the respondent No. 2 had not given such instances where the Administrative Committee while dealing with the representations made against the adverse remarks reported by the District Judge which the Administrative Judge without adverting to the representation had recorded good entries and the Administrative Committee had directed to consign the representation to record in view of the entries recorded by the Administrative Judge. The Court, vide order dated 6.12.2006, directed the learned Counsel appearing for the respondent No. 2 to bring on record such instances also by means of an affidavit.

12. Pursuant to the aforesaid direction, supplementary-affidavit-III has been filed on behalf of the respondent No. 2. In the said affidavit, five instances have been brought on record wherein the Administrative Committee has held that the District Judge's remarks have been superseded by the remarks of the Court. In the case of the two officers, the Administrative Committee had further recorded that the remarks recorded by this Court would prevail and in view of the remarks of this Court for the year in question, no further action in the matter was required.

13. We have heard Sri Navin Sinha, learned senior Counsel, assisted by Sri Vikas Budhwar and Sri Siddharth, learned Counsel appearing on behalf of the petitioner, and Sri Ravi Kant, learned senior counsel, assisted by Sri Amit Sthalkar, on behalf of the respondent No. 2 and the learned standing counsel who represents the respondent No. 1.

Rival submissions:

14. Sri Navin Sinha, learned senior Counsel, submitted that a harmonious construction of various provisions of Chapter III, Part (B) and Part (C) of the Rules of Court has to be given. According to him, under Clause (1) of Part (B) of Rule 4 of Chapter III of the Rules of Court, the Administrative Judge of the Division concerned is the competent authority to record entries in the character roll of a judicial officer. The Administrative Judge is both the reviewing authority as also the accepting authority and in case the Administrative Judge gives an adverse remark or stricture about the judicial work, conduct or integrity of an officer, the same is to be adverting to the representation made by the judicial officer, the Administrative Judge awards the good entry. The Court, vide order dated 4.10.2006, directed the learned Counsel appearing for the High Court, respondent No. 2, to bring on record the practice of the Administrative Committee on such matters by means of an affidavit. The Court further directed for bringing on record the entries awarded to the petitioner in previous as also in subsequent years, both by the District Judge as also by the Administrative Judge.

10. Pursuant to the aforesaid direction, the respondent No. 2 had brought on record the practice of this Court by means of filing supplementary-affidavit-II. In the said affidavit, two instances have been given where the Administrative Committee had overruled the good entries given by the Administrative Judge and had restored the adverse remarks made by the District Judge while considering the representation made by the officer concerned against the adverse remarks given by the District Judge. It may be mentioned here that two instances given have been considered by the Administrative Committee in its meeting held on 6.4.2005 and 29.11.2005. The annual confidential remarks given to the petitioner for the years 1996-97 to 2005-06 have also been filed alongwith the said supplementary-affidavit. It has been stated that for the years 1996-97, 1997-98 and 1998-99, there were no remarks from the Court.

Rival submissions:

14. Sri Navin Sinha, learned senior Counsel, submitted that a harmonious construction of various provisions of Chapter III, Part (B) and Part (C) of the Rules of Court has to be given. According to him, under Clause (1) of Part (B) of Rule 4 of Chapter III of the Rules of Court, the Administrative Judge of the Division concerned is the competent authority to record entries in the character roll of a judicial officer. The Administrative Judge is both the reviewing authority as also the accepting authority and in case the Administrative Judge gives an adverse remark or stricture about the judicial work, conduct or integrity of an officer, the same is to be contested cases and even the cases of broad day light murder, inspite of direct evidence, ended in acquittal and it was known about him that without taking bribe he would not acquit the cases specially when all the witness turned hostile, were patently misconceived, contrary to law besides being perverse as whatever the petitioner did was to the best of his ability after exercising the jurisdiction as a judicial officer and his judgments passed in judicial capacity could not be doubted in any manner whatsoever regarding their merits as they were subject to appeal, revision and therefore, no personal remarks could be attributed to the petitioner as there was nothing on record, which was apparent from the adverse remarks, as to what amount the petitioner accepted as bribe and who offered the said amount. The adverse remarks were, thus, based on rumours and had no nexus with reality.

19. According to him, the District Judge in the adverse remarks against column 4(2) had referred to the broad day light murder in S.T. No. 669 of 2001 State v. Allah Rakha and Ors., under Section 302, IPC, P.S. Nakur, district Saharanpur, decided by the petitioner on 12.3.2003, resulting in acquittal. The adverse remark was that there was a strong rumour in the civil court premises that the petitioner acquitted the accused persons by accepting a huge amount of about 5-6 lacs; one advocate, namely, Sri Ravindra Kapoor, also met the Hon'ble Administrative Judge during his visit of the Judgeship and told that the reader of the petitioner was acting as his agent; on the direction of the Hon'ble Administrative Judge, the reader of the petitioner was transferred and the District Judge in the meeting of the officers Impressed on the officer not to acquit the accused persons inspite of the overwhelming evidence. The said remarks were patently misconceived, contrary to law and perverse as at no point of time the Reader was utilised by the petitioner as his agent. According to him, Sri Ravindra Kapoor, who was the counsel for the two accused in the aforesaid sessions trial, had a personal prejudice against the petitioner inasmuch the irrelevant question put by him were disallowed while he was cross-examining P.W. 4, Dr. A. Nagaich who conducted post mortem and on that Sri Ravindra Kapoor left the Court using contemptuous language whereas another senior counsel in the case Sri Rishi Kumar Gupta for the remaining accused, concluded the cross-examination from the aforesaid witness.

20. According to him, the adverse remarks against column 4(3) related to the petitioner making some comments on the conduct and way of working of Sri Ham Chand Sharma, A.D.G.C. (Crl.) doing pairavi of criminal cases on behalf of the State in the Court of the petitioner, which was reported to the District Magistrate who called for his explanation and Sri Ilam Chand Sharma while submitting his reply a copy of which was also sent to the petitioner, made certain allegations of corruption against the petitioner making a reference to Sessions Trial No. 361 of 2000 State v. Rambal and Ors., under Section 342/364, I.P.C. According to him, the working of Sri Ilam Chand Sharma was not good and was in the habit of pressurizing the Presiding Officer, using contemptuous language in Court and not producing the witnesses even in hostile cases until his illegal expectations were fulfilled. The petitioner informed about this to the District Judge who asked the petitioner to give in writing so that Sri Ilam Chand Sharma could. be transferred and as such on 19.9.2003, the petitioner made another complaint and the District Magistrate, Saharanpur transferred Sri Ilam Chand Sharma from the Court of the petitioner and also asking him to submit his reply. This infuriated Sri Sharma and he made counterblast allegations against the conduct of the petitioner, which was relied upon by the District Judge for recording the adverse remarks against the petitioner.

21. He further submitted that the District Judge, Saharanpur, had mentioned in the minutes of the meeting dated 5.8.2003, that it was brought to his knowledge that the A.D.G.C. (Crl.) working in different Courts exploited the litigants and did not produce the witnesses even in hostile cases and as such It was clear that the aforesaid adverse remarks was patently illegal, contrary to law besides being violative of Article 14 of the Constitution of India as they tainted the petitioner on the basis of those incidents which have got no nexus with reality rather based on rumours and personal vendetta against the petitioner. In support of his various pleas, he has relied upon the following decisions:

(i) M.S. Bindra v. Union of India and Ors. ;

(ii) High Court of Punjab and Haryana through R.G. v. Ishwar Chand Jain and Anr. etc. ;

(iii) Zunjarao Bhikqji Nagarkar v. Union of India and Ors. ;

(iv) High Court of Judicature at Allahabad through Registrar v. Samam Singh and Anr. AIR 2000 SC 2150 : 2000 (1) AWC 617 (SC); and

(v) Ramesh Chander Singh v. High Court of Allahabad and Anr. .

22. In reply, Sri Ravi Kant, learned senior Counsel, submitted that the District Judge had seen the working of the petitioner during the period 1.4.2003 to 17.11.2003 while he was posted at Saharanpur and was competent to give adverse remarks to the petitioner. The District Judge while giving the adverse remarks, had acted impartially and in a most fair manner. He had considered the general reputation of the petitioner as also gave specific instances to substantiate the remarks given by him. Awarding of entry is an administrative act and is not quasi judicial act and the powers of this Court while exercising jurisdiction under Article 226 of the Constitution of India is very limited. According to him, the Administrative Committee had the jurisdiction to review the entries given by the Administrative Judge, referable to Clause 16 and Clause 17 of Part (C) of Rule 4 of the Rules of Court. According to him, as the representation against the adverse remarks given by the District Judge remained undecided by the Administrative Judge even though he had given the good entry, the same was placed before the Administrative Committee in view of the order of the Hon'ble Chief Justice dated 27.1.2005 and if the Administrative Committee after considering the adverse remarks given by the District Judge, the representation made by the petitioner as also the good entry given by the Administrative Judge, in its wisdom, had overruled the entries given by the Administrative Judge and accepted those given by the District Judge, it cannot be said that the Administrative Committee had acted illegally or without any jurisdiction or the orders suffers from any mistake apparent on the record. In support of his various pleas, he has relied upon the following decisions:

(i) R.L. Butail v. Union of India and Ors. ;

(ii) Union of India v. M.E. Reddy and Anr. (1980) 2 SCC 15;

(iii) Air Vice Marshal S.L. Chhabra, V.S.M. (Retd.) v. Union of India and Anr. 1993 Supp (4) SCC 441;

(iv) Swatantar Singh v. State of Haryana and Ors. ;

(v) Syed T.A. Naqshbandi and Ors. v. State of Jammu and Kashmir and Ors. ; and

(vi) Nawal Singh v. State of U.P. and Anr. .

Statutory provisions:

23. Before entering into the merits of the case, we deem it proper to reproduce the relevant provisions of Articles 225, 233 and 235 of the Constitution of India, the U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as "the 1975 Rules"); the Rules of Court, Government orders dated 21.5.1976 and 10.9.1976 and the Uttar Pradesh Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (hereinafter referred to as "the 1995 Rules"):

Constitution of India:

225. Jurisdiction of existing High Courts.--Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

233. Appointments of District Judges.--(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

235. Control over subordinate courts.--The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

U.P. Higher Judicial Service Rules, 1975:

Preamble:

In exercise of the powers conferred by the proviso to Article 309, read with Article 233, of the Constitution of India, the Governor, in supersession of the existing rules, is pleased to make the following rules regulating the recruitment and appointment to the Uttar Pradesh Higher Judicial Service and conditions of service and of persons appointed thereto.

1. Short title and commencement.--(1) These rules may be called the Uttar Pradesh Higher Judicial Service Rules, 1975.

(2) They shall come into force with effect from the date of their notification in the official Gazette.

2. Status of the service.--The Uttar Pradesh Higher Judicial Service is a State Service comprising Class I posts.

34. Regulation of other matters.--In regard to the matters not specifically covered by these rules or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of Uttar Pradesh.

The Rules of Court:

CHAPTER I

1. Introductory.--These Rules are made by the High Court of Judicature at Allahabad in exercise of the powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf.

CHAPTER III Executive and Administrative Business of the Court

4. The following shall be the allocation of executive and administrative work between the Chief Justice, the Administrative Judge and the Administrative Committee and the full Court:

 ...             ...            ...
 

(B) MATTERS FOR ADMINISTRATIVE JUDGES

1. Review of judicial work of subordinate Courts, Tribunals, district consumer forums and all other special Courts and control of their working Including inspection thereof, to record entries in the character rolls of the officers posted in the division assigned to the administrative Judge.

(Italicised by us)

3. Any adverse remarks or strictures made by the Administrative Judge about judicial work, conduct or integrity of any officer under his charge will be communicated to the officer concerned, who shall make his representations, if any, within a month and the same shall be placed before the Administrative Committee for consideration and decision.

16. Decision of the reports of the Administrative Judge including annual confidential remarks recorded by him in respect of an officer in his charge.

17. Consideration for representations against the decisions of the Committee relating to adverse remarks and strictures.

Government order No. 26/1/76-Karmik-2 Dated 21.5.1976:

la[;k&26@1@76&dkfEkZd&2 izs"kd] Jh IkFohukFk prqZosnh] vk;qDr ,oa lfpo mRrj izns'k 'kklu A lsok es] 'kklu ds leLr lfpo leLr foHkkxk/;{k rFkk izeq[k dk;kZy/;{k mRrj izns'k A dkfeZd&vuqHkkx&2 y[ku] fnukad 21 ebZ 1976 fo"k;% jkT; lsok deZpkjh;ks ds lEcU/k es okf"kZd xksiuh; izfof"V;ka vafdr djus dh izfdz;k A egksn;] eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk fu.kZ; fy;k x;k gS fd jkT; lsok deZpkjh;ks dh okf"kZd xksiuh; izfo"V;ka vafdr fd;s tkus ds fo"k; es fuEufyf[kr izfdz;k viuk;h tk;sxh A 1- izR;sd vf/kdkjh dh okf"kZd xksiuh; izfof"VBhd mlds ij ds izf/kdkjh }kjk fy[kh tk;sxh rFkk ml izfof"V dk iqujh{k.k izfof"V fy[kus okys vf/kdkjh ds Bhd ij ds izkf/kdkjh }kjk rFkk mldh Lohdj.k] iqujh{k.k djus okys vf/kdkjh ds Bhd mij ds izkf/kdkjh }kjk fd;k tk;sxk A leLr iz'kklfud foHkkxvius v/khuLFk lsokvks rFkk vf/kdkjh;ks ds lEcU/k es rnkuqlkj izfrosnu izkf/kdkjh @ leh{kd izkf/kdkjh @LohdrkZ izkf/kdkjh fu;e djsxs A izfrcU/k ;g gS fd v/kh{k.k vfHk;Urk rFkk mlls mPp Lrj ds vf/kdkjh;ks dh izfof"V dk Lohdkj.k eq[;ea=h th }kjk fd;k tk;sxk A ;g Hkh izfrcU/k gS fd vjktif=r deZpkjh;ks ds laca/k es dsoy izfrosnd izkf/kdkjh rFkk LohdrkZ izkf/kdkjh fu;e fd;s tk;sxs A 2- izfof"V fy[kus] mldk iqujh{k.k vFkok Lohdj.k djus ds fy,] ;g vko;'d gksxk fd mDr izkf/kdkjh us lEcfU/kr vf/kdkjh dk dk;Zde ls de 3 ekl rd ns[kk gks A Hkonh;

Ik`Foh ukFk prqosZnh vk;qDr ,oa lfpoA Government order No. 36/1/76-Karmik-2 Dated 10.9.1976:

la[;k&36@1@76&dkfeZd&2 izs"kd] Jh Ik`Foh ukFk prqosZnh] vk;qDr ,oa lfpo iz'kklfud lq/kkj ,oa dkfeZd foHkkx mRrj izns'k 'kkluA lsok es] leLr foHkkxks ds lfpo] leLr foHkkxk/;{k rFkk lfpo dk;kZy;k/;{k] mRrj izns'kA dkfeZd vuqHkkx&2 y[kUk] fnukad% 10 flrEcj 1976 fo"k;% jkT; lsok vf/kdkjh;ks dh okf"kZd xksiuh; vk[;k vafdr fd;s tkus dh izfdz;k ds lEcU/k es A egksn;] eq>s ;g ;g dgus dk funsZ'k gqvk gS fd jkT; lsok ds vf/kdkjh;ks ds lEcU/k es okf"kZd xksiuh; vk[;k vc izfrosnu vf/kdkjh leh{kk izkf/kdkjh rFkk LohdrkZ izkf/kdkjh }kjk fy[kh tkrh gSA bu izkf/kdkjh;ks }kjk O;Dr fd;s tkus oky vfHker es dHkh&dHkh vkil es fojks/k gks ldrk gS] tSls izfosnd vf/kdkjh }kjk nh x;h izfrdwy izfof"V ls leh{kd vFkok LohdrkZ izkf/kdkjh lger u gks ,sls ekeyks es izfrdwy izfof"V lalwfpr tkus ;k izfof"V dk ewY;kadu djus es izk;% dfBukbZ dh laHkkouk gksrh gSA vRk% bl fo"k; es ,d lkekU; uhfr viuk;s tkus dh vko;'drk dks /;ku es j[krs gq, 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd ,sls ekeyks es izfof"V dh ewY;kadu dh izfdz;k fuEuor gksxh A 1- izfrosnd] leh{kd vFkok LohdrkZ izkf/kdkjh }kjk fojks/kh er O;Dr fd;s tkus dh n'kk es izkf/kdkjh }kjk O;Dr fd;k x;k er vafre ewY;kasdu ekuk tk;sxkA 2- ;fn izfrosnd vFkok leh{kd izkf/kdkjh }kjk vafdr dh x;h izfrdwy izfof"V dks LohdrkZ izkf/kdkjh }kjk iw.kZ :Ik ls vFkok vkaf'kd :i ls Li"Vr;k [kafM+r dj fn;k x;k gSa rks og izfrdwy izfof"V mlh lhek rd izHkkoghu le>kh tkosxh ftl rd mls LohdrkZ vf/kdkjh }kjk [kafM+r fd;k x;k gSA ;fn izfrdwy izfof"V iw.kZr% [kafM+r dh x;h gS rks ;|fi og pfj= iaftdk es cuh jgsxh rFkkfi mls lalwfpr fd;s tkus dh vko;'drk ugh gS] vkSj ;fn izfrdwy izfof"V iw.kZ:i ls [kafM+r ugh dh x;h gS rks izfof"V dk og Hkkx tks Li"V :i ls [kafM+r ugh fd;k gSSA izfrdwy ekuk tk;sxk vkSj ,slh n'kk es lacaf/kr vf/kdkjh dks lEiw.kZ :i ls voxr djk;k tk;sxk A 3- blh izdkj ;fn izfronsd vFkok leh{kd izkf/kdkjh }kjk fdlh iz'kalkRed izfof"V dks LohdrkZ izkf/kdkjh }kjk [kafM+r x;k gS rks og iz'kalkRed izfof"V izHkkoghu le>h tkosxh vkSj lHkh iz;kstuks ds fy, izfof"V ds ewY;kadu es mDr iz'kalkRed izfof"V dh x.kuk es ugh fy;k tk;sxk A Hkonh;

Ik`Foh ukFk prqosZnh vk;qDr ,oa lfpo A The Uttar Pradesh Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995:

Preamble:

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules:

1. Short title, commencement and application.--(1) These rules may be called the Uttar Pradesh Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995.

(2) They shall come into force at once.

(3) They shall apply to all Government servants.

2. Overriding effect.--These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders.

... ... ...

4. Communication of adverse report and procedure for disposal of representation.--(1) Where a report in respect of a Government servant is adverse or critical, wholly or in part, hereinafter referred to as adverse report, the whole of the report shall be communicated in writing to the Government servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority, within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report.

(2) A Government servant may, within a period of 45 days from the date of communication of adverse report under Sub-rule (1), represent in writing directly and also through proper channel to the authority, one rank above the accepting authority, hereinafter referred to as the competent authority and if there is no competent authority, to the accepting authority itself, against the adverse report so communicated:

Provided that if the competent authority or the accepting authority, as the case may be, is satisfied that the Government servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation.

(3) The competent authority as the case may be within a period not exceeding one week from the date of receipt of the representation under Sub-rule (2), transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting authority, as the case may be:

Provided that no such comments shall be required if the appropriate authority has ceased to be in, or has retired from, the service or is under suspension before sending his comments.

(4) The competent authority or the accepting authority, as the case may be, shall within a period of 120 days from the date of expiry of 45 days specified in Sub-rule (3) consider the representation alongwith the comments of the appropriate authority, and if no comments have been received without waiting for the comments, and pass speaking orders--

(a) rejecting the representation; or

(b) expunging the adverse report wholly or partly as he considers proper.

(5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in Sub-rule (4), he shall report in this regard to his higher authority, who shall pass such orders as he considers proper for ensuring disposal of the representation within the specified period.

(6) An order passed under Sub-rule (4) shall be communicated in writing to the Government servant concerned.

(7) Where an order expunging the adverse report is passed under Sub-rule (4), the competent authority or the accepting authority, as the case may be, shall omit the report so expunged.

(8) The order passed under Sub-rule (4) shall be final.

(9) Where any matter for

(i) communication of an adverse report;

(ii) representation against an adverse report;

(iii) transmission of representation to the appropriate authority for his comments;

(iv) comments of the appropriate authority; or

(v) disposal of representation against an adverse report;

is pending on the date of the commencement of these rules, such matters shall be dealt with and disposed of within the period prescribed therefor under this rule.

Explanation.--In computing the period prescribed under this rule for any matters specified in this sub-rule, the period already expired on the date of the commencement of these rules shall not be taken into account.

Discussions:

24. We have given our anxious consideration to the various pleas raised by the learned Counsel for the parties.

Scheme of Statutory provisions:

25. Article 225 of the Constitution of India deals with the jurisdiction of the existing High Court. Amongst other things, it saves the power of the Court to make rules as it was existing immediately before the commencement of the Constitution of India. Article 233 of the Constitution of India deals with the appointment of the District Judges. The Governor has been empowered to make appointment, posting and promotion of the District Judge in consultation with the High Court whereas Article 235 of the Constitution of India gives the High Court the power of control over the subordinate courts.

26. The petitioner is the member of the U.P. Higher Judicial Service. His service conditions are governed by the 1975 Rules. The 1975 Rules have been framed by the Governor of Uttar Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India (as would be clear from the preamble of the 1975 Rules). Rule 34 of 1975 Rules provides that if any matter is not specifically covered by the 1975 Rules or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to the Government servant serving in connection with the affairs of the State of Uttar Pradesh. Thus, in respect of the matters which have not been specifically provided for in 1975 Rules, service rules, regulations and the Government orders generally applicable to the State Government employees shall be applicable to the persons belonging to the U.P. Higher Judicial Service.

27. The rules of the Court have been framed by the High Court in exercise of the powers conferred by Article 225 of the Constitution of India for providing the procedures for conducting the work of the High Court, both on the administrative and judicial side. In Chapter III of the rules of Court, the executive and administrative business of the Court have been allocated between the Chief Justice, the Administrative Judge, the Administrative Committee and the Full Court. Amongst other things, in Clause 1 Part (B) of Rule 4 of Chapter III of the rules of Court, the Administrative Judge has been empowered to record entries in the character rolls of the officers posted in the division assigned to him.

28. Clause 3 of Part (B) of Rule 4 of Chapter III of the rules of Court provides for communication of the adverse remarks or strictures made by the Administrative Judge to the officer concerned who is allowed a month's time to make a representation which is to be placed before the Administrative Committee for consideration and decision. The Administrative Committee, amongst others, has been empowered under Clauses 16 and 17 of Part (C) of Rule 4 of Chapter III to consider the annual confidential report recorded by the Administrative Judge in respect of the officer in his charge and to consider the representation against the decision of the Committee relating to adverse remarks and strictures. Clause 16 is to be read with Clause 17 and is referable to powers to be exercised by the Administrative Committee while considering the representation made by the officer concerned against the adverse remarks or strictures given by the Administrative Judge.

29. Under Clause 1 of the Government order dated 21.5.1976, the manner of recording confidential entry has been provided. It shall be written by the officer just above the rank of the officer concerned, which will be reviewed by an officer just above the rank of the reporting officer and accepted by an officer just above the rank of the reviewing officer. Clause 2 empowers the reporting officer, reviewing officer and accepting officer to record entries, review or accept only if they have seen the work of the Government servant for at least three months.

30. Under Clause 1 of the Government order dated 10.9.1976, it has been provided that if contradictory and conflicting opinions have been expressed by the reporting officer and the reviewing officer, in that event, the opinion expressed by the accepting authority shall be considered to be final. Clause 2 of the said Government order provides that if the accepting authority has cancelled either wholly or partly the adverse remarks given by the reporting officer or the reviewing officer, in that event, the adverse remarks to that extent shall be treated as Ineffective/non est. If the adverse remarks has been set aside wholly even though the adverse remarks would remain in the character roll but It shall not be communicated and if the adverse remarks has not been set aside/expunged fully, in that event only that part of entry which has not been expunged, shall be considered as adverse and shall be communicated to the Government servant concerned.

31. The 1995 Rules have been framed by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India as is clear from the preamble of the said Rules. Rule 1 makes the 1995 Rules applicable to all the Government servants whereas Rule 2 provides for an overriding effect of the 1995 Rules to anything contained to the contrary in any rules or orders. Rule 4 deals with the procedure of communication of the adverse remarks and disposal of the representation. Sub-rule (1) provides for communication in writing of the adverse remarks to the Government servant by the accepting authority or by an officer not below the rank of the reporting authority, within a specified period. Under Sub-rule (2), the Government servant has been given a right to make a representation against the adverse remarks in writing directly and also through proper channel to the competent authority who is one rank above the accepting authority and if there is no competent authority, to the accepting authority itself. Under the proviso, the period of making representation can be extended by a further period of 45 days on sufficient cause being shown for not making the representation. Under Sub-rule (3), the comment of the appropriate authority who has recorded the adverse remarks is sought. Under Sub-rule (4), the competent authority or the accepting authority has been empowered to decide the representation. It may reject the representation or expunge the adverse remarks wholly or partly as he considers it appropriate. Under Sub-rule (6), the order passed under Sub-rule (4) is to be communicated in writing to the Government servant concerned. Under Sub-rule (8), the order passed under Sub-rule (4) has been made final.

32. It may be mentioned here that under Article 235 of the Constitution of India the High Court has the power of control over the District Courts and the courts subordinate thereto including the posting, promotion, grant of leave to the persons belonging to the judicial service of the State. Even though the officers belonging to the U.P. Higher Judicial Service and the U.P. Judicial Service are the State Government employees, they are under the direct control of the High Court and, therefore, annual confidential report are being written by the High Court. The rules of Court, under Chapter III, allocates the executive and administrative work between the Hon'ble Chief Justice, the Administrative Judge and the Administrative Committee. The administrative Judge has been given the power to record character roll entry of the judicial officer. All the Judges are equal and the Chief Justice is the first amongst equals. The Administrative Committee which comprises of 9 Hon'ble Judges, therefore, cannot be said to be an authority higher in rank. Except for the power to decide the representation against the adverse remarks recorded by the Administrative Judge, the Administrative Committee has not been empowered to sit in appeal or review over the good entry awarded by the Administrative Judge in the character roll of a judicial officer.

33. From the analysis of the aforesaid provision, we find that the 1975 Rules have not provided for the manner in which the adverse remarks, if any, recorded in the character roll of a person belonging to the U.P. Higher Judicial Service is to be recorded and dealt with. In view of Rule 34 of 1975 Rules, the provisions of 1995 Rules would be applicable. The 1995 Rules specifically provides for the manner in which the adverse remarks in the character roll has to be dealt with. The two Government orders dated 21.5.1976 and 10.9.1976, by virtue of the provisions of Rule 34 of the 1975 Rules, would also be applicable. Under the Government order dated 21.5.1976, the reporting officer, reviewing officer and the accepting officer who have seen the work of the Government servant concerned for a period of not less than three months, can record the entry in the character roll. Further, the reporting officer should be an officer of a rank just above the Government officer concerned, the reviewing officer should be one rank above the reporting officer and the accepting officer should be one rank above the reviewing officer. However, under the Government order dated 10.9.1976, it has been specifically provided that if there is a conflict or contradictory report of the reporting officer and the reviewing officer and the accepting officer, in that event, report/view of the accepting officer shall be treated as final report and if the final report of the accepting officer has clearly set aside/expunged fully the report of the reporting officer or the reviewing officer, in that event, the adverse report of the reporting officer and reviewing officer need not be communicated and shall be treated as ineffective or expunged. However, if the report has been set aside or expunged in part, the remaining part of the report is to be communicated to the Government servant concerned.

34. The Apex Court in the case of S.B. Bhattacharjee v. S.D. Majumdar and Ors. in Appeal (Civil) No. 2527 of 2007 with Appeal (Civil) Nos. 2528-2529 of 2007, decided on 15.5.2007, while considering sub-clause (f) of Clause 3.4 of the Office Memorandum dated 10.10.2002, issued by the State of Mizoram, which was to following effect:

(f) If the reviewing authority or the accepting authority, as the case may be, has overruled the reporting officer, or the reviewing authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the assessment of the reporting officer, reviewing authority and accepting authority are complimentary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the D.P.C.

has held as follows:

15. It has not been denied or disputed before us that in a given case A.C.Rs. of an eligible candidate may not be written and thus, may not be available. If the same is available, a notice in that behalf must be given, in the event, any exigency arises therefor to the affected officer and only upon consideration of the representation made by him, if any, the decision taken in that behalf by the reviewing authority shall be final. The A.C.R. by immediate superior, thus, is not final or determinative, as the same would be subject to the decision of the reviewing authority.

35. Even though the rules of Court allocates the executive and administrative work between the Administrative Judge and the Administrative Committee, we find that in the case of the members of the U.P. Higher Judicial Service (Additional District Judge and District Judge) and the members of the U.P. Judicial Service, (Civil Judges (Senior Division) and Civil Judges (Junior Division)), the reporting officer is the District Judge concerned except in the case of the District Judge. There is no reviewing authority. The accepting authority is the Administrative Judge concerned. In the case of the District Judges, there is no reporting authority and the Administrative Judge is both the reporting authority as well as the accepting authority. As the Administrative Judge is the accepting authority, both for the members of the U.P. Higher Judicial Service and the U.P. Judicial Service, the representation against the adverse remarks given by the District Judge would lie before the Administrative Judge. The powers conferred under Clauses 16 and 17 of Part (C) of Rule 4 of Chapter III of the rules of Court have to be read in conjunction and when read in such a manner, it has necessarily to be confined to consideration of annual confidential report recorded by the administrative Judge only when it is adverse to the officer concerned and when a representation has been made by such an officer. This is also clear from a reading of Clause 3 of Rule 4B of Chapter III of the rules of Court wherein it is specifically provided that upon an adverse entry being recorded by the Administrative Judge, the officer has a right to make a representation which has to be considered by the Administrative Committee under its powers assigned by virtue of Clauses 16 and 17 of Rule 4C of Chapter III of the rules of Court. Any other interpretation of Clauses 16 and 17 of Rule 4C of Chapter III of the rules of Court would run counter to the general scheme applicable to Government employees who are covered by the 1995 Rules and which by virtue of Rule 34 of 1975 Rules, would be applicable to the members of the Higher Judicial Service including the petitioner. The Administrative Committee can further review its own decision passed on the representation made against the grant of the adverse remarks/strictures wherein the representation has been rejected.

36. Having analyzed the scheme of the various statutory provisions referred to above, we are of the considered opinion that the Administrative Committee has no power to sit in appeal or review a good entry awarded by the Administrative Judge concerned to a judicial officer.

Past Practice:

37. The rules of Court have been framed in the year 1952. The practice for this Court had been that if the Administrative Judge had awarded good entry to an officer, the same had never been reconsidered either by the Administrative Committee or by the Full Court. Even where the reporting officer, i.e., the District Judge, had given the adverse remarks against the officer who has made a representation to this Court and without specifically dealing with the said representation, the Administrative Judge had awarded good entry, the Administrative Committee had, as a practice, always held that no orders are required to be passed as the remarks given by the District Judge stood superseded by the good entry given by the Administrative Judge. This practice stands proved by the decision taken by the Administrative Committee in its meeting held on 20.9.2003 in respect of Sri Shamsher Khan; in its meeting held on 26.9.2004 in the case of Sri P.N. Sachan as also in respect of three officers, namely, Sri Vinod Kumar Singh III, Sri Guru Saran Lai Srivastava and Sri Vinod Kumar Barnwal, wherein the Administrative Committee in its meeting held on 6.4.2005 has held that the remarks of the District Judges have been superseded by the remarks of the Court (Administrative Judge). The doctrine of contemporanea expositio can be invoked in the present case.

38. The Apex Court in the case of S.B. Battacharjee v. S.D. Majumdar and Ors. (supra) has considered the doctrine of contemporanea expositio and has held that it may be taken recourse to in appropriate cases. It has held as follows:

But, however, it is also necessary for us to bear in mind the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of contemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a Legislature.

In G.P. Singh's 'Principles of Statutory Interpretation', 10th Edn. at p. 319, it is sated:

But a uniform and consistent departmental practice arising out of a construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the Court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as 'executive construction' would depend upon various factors such as the length of time for which it is followed, the nature of rights and property affected by it, the injustice result from its departure and the approval that it has received in judicial decisions or in legislation.

Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh, having regard to the fact that the President of the Income Tax Appellate Tribunal had been from its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places where Benches of the Tribunal were functioning, held construing Sections 251(1) and 255(5) of the Income-tax Act, that the President under these provisions has the requisite power of transfer and posting of its members. The Court observed : "For construction of a statute, it is trite, the actual practice may be taken into consideration.

Contemporary official statements throwing light on the construction of a statute and statutory instruments made under it have been used as contemporanea expositio to interpret not only ancient but even recent statute both in England and India.

39. Applying the principles laid down in the aforesaid case, we are of the considered opinion that the past practice adopted by the Administrative Committee in holding that the adverse remarks given by the District Judge stands superseded by the remarks of this Court (Administrative Judge), establishes the fact that the Administrative Committee could not review the cases where the Administrative Judge had recorded good entry in the character roll of a judicial officer, under Clause 16 of Part (C) of Rule 4 of Chapter III of the rules of Court.

40. It may be mentioned here that even otherwise as the members of the U.P. Higher Judicial Service are governed by the rules framed by the State Government, regulations and the Government orders issued by it with regard to recording of entries in the character roll are applicable as there is no specific provision in 1975 Rules. The order, if any, issued by the Hon'ble Chief Justice for placing the undecided representation made by the officer against the adverse remarks given by the District Judge notwithstanding the fact that the Administrative Judge concerned had given good entry, cannot Justify placing of the representation before the Administrative Committee. At this Juncture It would be relevant to mention here that in sub-paragraphs A and B of paragraph 13 of counter-affidavit filed on behalf of the respondent No. 2, it has been specifically stated that the representation dated 9.2.2004 made by the petitioner was placed before the Administrative Judge. However, the character roll file was received back without any order on the representation. The Court's remarks for the year 2003-04 were found recorded by the Administrative Judge and as the representation remained undecided, the same was placed before the Administrative Committee.

41. Since admittedly, the representation made by the petitioner was placed before the Administrative Judge and the Administrative Judge having recorded good entry in the character roll of the petitioner, it would be deemed that the representation impliedly stood allowed and no orders were required to be passed on the said representation except to consign it to record.

Jurisdiction and power of this Court under Article 226 of the Constitution of India:

42. The power of this Court under Article 226 of the Constitution of India to examine the legality of a decision passed by this Court on administrative side cannot be disputed. In fact, the Hon'ble Supreme Court in the case of Maharashtra State Judicial Service Association and Ors. v. High Court of Judicature at Bombay and Ors. , has specifically held that:

We have no doubt in our mind that an administrative decision of the Court could be assailed by filing a writ petition under Article 226 in the High Court itself.

43. The power being there with the High Court, the question still remains as to what is the extent of power which could be exercised in a given case.

44. In the case of Air Vice Marshal S.L. Chhabra (supra) the Apex Court has held that the Court cannot encroach upon the powers of the selection board in making selection on the Air Vice Marshal by substituting its own view and opinion.

45. In the case of Syed T.A. Naqshbandi (supra) the Apex Court, in paragraph 10 of its report, has held as follows:

Neither the High Court nor this Court, in exercise of its powers of Judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned Counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or defy an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaking by the Full Court, to Judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.

46. In the case of M.E. Reddy (supra) the Apex Court has held as follows:

24. Learned Counsel for Reddy heavily relied on the decision of this Court in the case of State of Uttar Pradesh v. Chandra Mohan Nigam (supra) and contended that as the Government of India while passing the impugned order had not considered the report of the review committee the order is vitiated by an error of law. We have gone through this decision and we are unable to agree with the contentions put forward by learned Counsel for Reddy. The decision referred to above is not an authority for holding that the decision of the review committee is binding on the Government of India. All that is necessary is that Government of India should, before passing an order under Rule 3, consider the report of the review committee which is based on full and complete analysis of the history of the service of the employee concerned. In the instant case, it is clearly pleaded by the appellants in the High Court that the report of the review committee was in fact considered by the Government of India before passing the impugned order. The confidential file placed before us also clearly shows that on the note sheet the notes by the Secretary on the recommendations of the review committee the Home Minister, Mr. K. Brahmananda Reddy has appended his signatures and has passed the order that Reddy should be compulsorily retired. Furthermore, in Nigam's case (supra), referred to above what had weighed with the Court was that after the review committee had submitted its report to the Government, the Government ordered a second review committee just in order to enable the review committee to give an adverse report against the officer concerned. Such a course of action was condemned and deprecated by this Court. In the instant case, however, there is no allegation by Reddy that any second committee was ever appointed. Even so in Nigam's case (supra) this Court did not depart from the ratio laid down in Sinha's case (supra) and followed by later cases but observed as follows:

As stated earlier, even in the case of compulsory retirement under Rule 16 (3), an order may be challenged in a Court If It is arbitrary or mala fide. If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide, the order, per se, cannot be characterised as by way of punishment since it does not cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequence.

47. In the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat , the Apex Court, in paragraphs 25 to 30 of its report, has held as follows:

25. This principle was reiterated in Tata Cellular v. Union of India , in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law;

3. Committed a breach of the rules of natural justice;

4. Reached a decision which no reasonable Tribunal would have reached; or

5. Abused its powers.

26. In this case, Lord Denning was quoted as saying:

Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the Courts will not themselves take the place of the body of whom Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter : See Healey v. Minister of Health (1955) 1 QB 221.

27. Lord Denning further observed as under:

If the decision-making body is influenced by considerations which ought not influence it; or falls to take into account matters which it ought to take into account, the Court will interfere : See Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997.

28. In Sterling Computers Ltd. v. M. and N. Publications Ltd. , it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wade's Administrative Law was relied upon:

The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which Legislature is presumed to have intended.

29. It may be pointed out that this principle was also applied by Professor Wade to quasi-judicial bodies and their decisions. Relying upon the decision in Queen v. Justices of London (1895) 1 QB 214, Professor Wade laid down the principle that where a public authority was given power to determine a matter, mandamus would not lie to compel it to reach some particular decision.

30. A Division Bench of this Court comprising of Kuldip Singh and B.P. Jeevan Reddy, JJ. In U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. , observed as under (Para 11 of AIR):

The obligation to act fairly on the part of the administrative authorities was involved to ensure the rule of law and to prevent failure of Justice. This doctrine is complementary to the principles of natural Justice which the quasi-Judicial authorities are bound to observe. It is true that the distinction between a quasijudiclal and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India . Even so the extent of Judicial scrutiny/Judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well-known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred" Lord Diplock in Secretary of State for Education v Tameside Metropolitan Borough Council 1977 AC 1014 at 1064. The Court cannot substitute its judgment for the Judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.

48. The aforesaid decision has been followed subsequently by the Apex Court in the case of E.P.U.R.U. Sudhakar v. Government of Andhra Pradesh , and the same principles have again been reiterated.

49. From the aforesaid decisions, it is seen that the High Court cannot sit as an appellate authority over the decision and order of the administrative authorities. The Court cannot substitute its judgment for the judgment of the administrative authorities even if certain amount of discretion is available to them. However, when the action of the administrative authorities is unfair or unreasonable, then the Court can intervene in the following situation:

(a) where a decision-making authority exceeded its powers?

(b) committed an error of law;

(d) reached a decision which no reasonable Tribunal would have reached; or

(e) abused its powers.

50. The decision of the Administrative Committee dated 6.4.2005, as communicated to the petitioner, vide letter dated 29.4.2005, has to be examined on the touchstone of the above principles.

51. When examined from the above angle, we find that, as already stated hereinbefore while analyzing the scheme of statutory provision, the Administrative Committee has no power to sit in appeal or review over a good entry having been awarded by the Administrative Judge. Thus, the Administrative Committee had exceeded its power and the order, therefore, cannot be allowed to stand.

52. In the case of M.S. Bindra (supra) the Apex Court has held as follows:

13. While viewing this case from the next angle for Judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" It is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

53. In the case of Ishwar Chand Jain (supra), the Apex Court has held as follows:

32. Since late this Court is watching the spectre of either judicial officers or the High Courts coming to this Court when there is an order prematurely retiring a Judicial officer. Under Article 235 of the Constitution High Court exercises complete control over subordinate courts which include district courts inspection of the subordinate courts is one of the most important functions which High Court performs for control over the subordinate courts. Object of such inspection is for the purpose of assessment of the work performed by the subordinate Judge, his capability, integrity and competency. Since Judges are human beings and also prone to all the human fallings inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the working of the subordinate court, remedied. Inspection should act as a catalyst in inspiring subordinate Judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the Courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of Courts at grass root level. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and become part of the annual confidential reports and are foundations on which the career of a judicial officer is made or marred. Inspection of subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate courts is not a one day or an hour or few minutes affair. It has to go on all the year round by monitoring the work of the Court by the inspecting Judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As noticed in the case of R. Rajiah JT 1988 (2) SC 567 : AIR 1988 SC 1388, there could be 111 conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeopardizes the efficient working of the subordinate courts.

54. In the case of Sarnam Singh (supra) the Apex Court has held that the observations made by the Apex Court in the case of Ishwar Chand Jain (supra) are extremely important observations and constitutes important guidelines for assessing the work of judicial officer:

33. These are extremely important observations and constitute important guidelines for assessing the work of a Judicial officer. These observations also indicate the attitude with which the Inspecting Judge should objectively consider the work and conduct of the judicial officers who sometimes have to work under difficult and trying circumstances. The same views were earlier expressed in State Bank of India v. Kashi Nath Kher . See also Union of India v. N.R. Banerjee ; State of Uttar Pradesh v. Yamuna Shanaker Mishra , as also Swatantra Singh v. State of Haryana , on the question as to what precisely is the object and purpose of writing annual confidential report).

34. We would conclude the discussion by referring to the observations of this Court in M.S. Bindra v. Union of India , which are as under (Para 13):

To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

55. In the case of Zunjarao Bhikaji Nagarkar (supra) the Apex Court has held as follows:

43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-Judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.

56. In the case of Ramesh Chander Singh (supra), the Apex Court, after referring to the case of Ishwar Chand Jain (supra), has held as follows:

12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher Courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.

13. In Iswar Chandra Jain v. High Court of Punjab and Haryana , this Court observed that while exercising control over subordinate judiciary under Article 235 of the Constitution, the High Court is under a Constitutional obligation to guide and protect subordinate judicial officers. An honest and strict judicial officer is likely to have adversaries. If complaints are entertained in trifling matters and if the High Court encourages anonymous complaints, no Judicial officer would feel secure and it would be difficult for him to discharge his duties in an honest and independent manner. It is imperative that the High Court should take steps to protect honest Judicial officers by ignoring ill-conceived or motivated complaints made by unscrupulous lawyers and litigants.

14. In K.P. Tiwari v. State of Madhya Pradesh , where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher Court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of Judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure-contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher Court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure Judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher Courts express lack of faith in the subordinate judiciary for some reason or other. That amounts to destruction of judiciary from within.

15. In Kashi Nath Roy v. State of Bihar , this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision making in law and in fact. The higher Courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the Court and independence of the judiciary. The higher Court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear and result oriented and rarely a rebuke.

16. In series of other cases also, this Court disfavoured the practice of passing strictures or orders against the subordinate officers. See : Braj Kishore Thakur v. Union of India and Alok Kumar Royv. Dr. S.N. Sharma .

17. In Zunjarrao Bhikaji Nagarkar v. Union of India AIR 1999 SC 2881, this Court held that wrong exercise of Jurisdiction by a quasi-judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of Judicial Independence are very essential for an efficacious Judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level.

57. In the case of R.L. Butail (supra) while considering the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Apex Court has held as follows:

13. These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case, the officer making the order has to give a reasonable opportunity to the Government servant to present his case. The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that therefore, the confidential reports are vitiated.

58. In the case of Swatantar Singh (supra) the Apex Court in paragraph 6 of the report, has held as follows:

6. It is sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record. It would, therefore, may be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported be evidence, like the remarks made by the Superintendent of Police. More often the corrupt officer manipulates in such a way and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus, appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-avis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, prove honesty and integrity in future in which even, obviously, the authority would appreciate and made necessary remarks for the subsequent period. The appellate authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.

59. In the case of Nawal Singh (supra) the Apex Court, in paragraph 8 of the report, has held as follows:

Further, it is impossible to prove by positive evidence the basis for doubting integrity of the Judicial officer. In the present day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the concerned officer from close quarters and formation of his opinion with regard to overall reputation enjoyed by the concerned officer would be the basis.

60. From the aforesaid decisions of the Apex Court, the following principles emerges:

(i) while evaluating the material, the authorities should not altogether ignore the reputation in which the officer was held till recently;

(ii) the maxim "Nemo Flrut Repente Turpissimus" (no one becomes dishonest all of a sudden) is not unexceptionable but it is a salutary guideline to judge the human conduct;

(iii) to dunk an officer into the puddle of doubtful integrity, it is not enough that the doubt fringes on a mere hunch;

(iv) mere possibility is hardly sufficient to assume that it would have had happened;

(v) rumour mongering is to be avoided at all costs as it seriously jeopardises the efficient working of the subordinate courts;

(vi) if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of the quasi-Judicial officer;

(vii) the higher Courts after hearing the appeal may modify and set aside erroneous judgment of the lower courts;

(viii) a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure-contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher Court. Every error, however gross It may be, should not be attributed to improper motives; and

(ix) the reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record.

61. Applying the principles laid down in the aforesaid cases to the facts of the present case, we find that the adverse remarks given by the District Judge regarding the petitioner being corrupt and thus, his integrity being highly doubtful was based on hearsay and rumours. There was no material on record to substantiate the same except the rumours which the District Judge had heard in the civil court and the complaint of Sri Ravindra Kapoor, advocate, whose irrelevant question in cross-examination was disallowed by the petitioner and the statement of Sri Ilam Chand Sharma, A.D.G.C. (Crl.) who was transferred from the Court of the petitioner on the latter's complaint. Thus, the opinion of the District Judge was not based on any substantial material except the hearsay and rumours on the basis of which the adverse remarks of the officer being corrupt cannot be given. Thus, there being no other material before the District Judge, Saharanpur, to support the adverse remarks, the same cannot be sustained.

Previous and subsequent character roll entries:

62. We find that the District Judge has given the adverse remarks to the petitioner for the year 2003-04, in respect of the period 1.4.2003 to 17.11.2003, when he was posted at Saharanpur. The entries given by the inspecting/Administrative Judge in the annual confidential report of the petitioner since he joined the service till date are as follows:

  Year           Place of               Entry               Remarks
               posting       Integrity       Rating
1996-97        Moradabad     Certified       Very Good
1997-98        Moradabad     Beyond          Good
                             doubt
1998-99        Moradabad     Beyond          Very
                             doubt           Good
1999-2000      Moradabad     Certified       Very
                                             Good
2000-01        Nainital      Certified       Good
2001-02        Saharanpur    Certified       Good
2002-03        Saharanpur    Beyond          Good
                             doubt
2003-04        Saharanpur    Doubtful        Poor        Given by D.J.
(1.4.2003                                                 Aforesaid entry stood
17.11.2003)                                               superseded when the
                                                          Administrative Judge
                                                          gave good entry and
                                                          certified integrity.
                                                          However, the
                                                          Administrative Committee
                                                          vide resolution dated
                                                          6.4.2005 restored the 
                                                          adverse remarks of D.J.
2003-04        Basti         Beyond          Good
(19.11.2003-                 doubt
31.3.2004)
2004-05                       Basti          Certified     Good
2005-06                       Basti          Certified     Good

63. From a perusal of the entries given in the annual confidential report of the petitioner since 1996-97 to 2005-06, i.e., from the very inception when the petitioner joined service, we find that the petitioner has always been rated either as a 'Good' officer or a 'Very Good' officer and his integrity has also been found to be beyond doubt and also certified except for the brief period of eight months, i.e., 1.4.2003 to 17.11.2003, by the District Judge, Saharanpur, which entry has also been superseded by the good entry given by the Administrative Judge, Saharanpur for the aforesaid period. It may further be mentioned here that the same District Judge had reported the petitioner to be a good officer with integrity beyond doubt in the immediately preceding year, i.e., 2002-03. It does not stand to reason as to why immediately in the following year the petitioner was found to have turned dishonest and lacking integrity. The entries of the previous years as also the subsequent years speak otherwise. We are, therefore, of the considered opinion that the remarks reported by the District Judge for the period in question was based only on hearsay and rumours without any concrete material and evidence on record. The principles laid down by the Apex Court in the case of Ramesh Chander Singh (supra), would be squarely applicable to the facts of the present case and in this view of the matter, also the adverse remarks given by the District Judge, restored by the Administrative Committee, cannot be sustained and is liable to expunged.

64. In view of the foregoing discussions, the writ petition succeeds and is allowed. The decision of the Administrative Committee dated 6.4.2005, as communicated to the petitioner vide letter dated 29.4.2005, is quashed. The petitioner is entitled to all consequential benefits. On the facts of the case, there shall be no order as to costs.

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Thursday, 5 March 2015

Whether annual confidential report is vitiated on the ground that adverse remarks did not contain specific instances?

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