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Judgment
T.S. Doabia, J.—The petitioner was visited by an adverse confidential report when he was functioning as Principal, Revenue Training
School. This is for the year 1983-84. This has been placed on the record as Annexure-1. His knowledge of work, power of acquiring general
information, judgment, initiative, relations with public was found to be good. His integrity, control over subordinates, speed of disposal, industry
and conscientiousness was termed as satisfactory. When the matter went before the reviewing authority, an entry came to be made. This entry
made by the Reviewing authority suggested that the petitioner deserves to be retired prematurely. As the earlier good and satisfactory remarks and
the later portion are part of the same communication, this is being reproduced below:
General Assessment
i) Knowledge of work -Good
ii) Power of acquiring general information -Good
iii) Attention to detail -Good
iv) Industry and Conscientiousness Satisfactory
v) Judgment -Good
vi) Speed of disposal Satisfactory
vii) Initiative -Good
viii)Control over subordinates Satisfactory
ix) Relations with public -Good
x) Integrity Satisfactory
Further the following remarks have been recorded in part-III under the head ""Remarks of the Reviewing Authority:
A thoroughly useless officer. Irregular in attendance. Very little application. Disrespectful to his immediate superior. A fit case for premature
retirement.
These adverse entries are subject matter, of challenge in S.W.P. No. 441 of 1986.
Further fact is that the petitioner came to be prematurely retired. An order to this effect was passed on April 14, 1986. This order is subject
matter of challenge in S.W.P. No. 481 of 1986.
The petitioner submits that entry for the year 1983-84 was communicated to the petitioner in the month of September, 1985. It is submitted that
he preferred a representation against this. The representation was pending when further order which is subject matter of challenge in S.W.P. No.
481 of 1986 came to be passed. It is submitted that the basis of the order by which petitioner was prematurely retired was the communication
noticed above. As the petitioner did prefer a representation against that and as that representation has not been decided, it is submitted that the
order of premature retirement cannot be sustained.
The order of premature retirement passed on April 14, 1986 which is Annexure-I in S.W.P. No. 481 of 1986 is also being noticed. This reads
as under:
Government of Jammu and Kashmir General Department (Services) Govt. Order No. 207-GR of 1986 Dated April 14, 1986 Whereas the
Governor is of the opinion that it is in the public interest to do so.
Now, therefore, in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, the Governor hereby
gives notice to Shri Mohan Singh, Collector, Land Acquisition, Flood Control, Srinagar that he having already attained 48 years of age shall retire
from service with effect from afternoon of April 14, 1986.
He is allowed three months pay and allowances in lieu of three months' notice.
By order of the Governor of Jammu & Kashmir.
Sd/- (Ganshyam)
Secretary to Government,
General Department (Services)
Learned counsel appearing for the petitioner submits that the order of premature retirement cannot be justified if it is based on adverse entries
which are not communicated to the employee or against which a representation has been preferred and that representation is pending.
The requisite averment that a representation was preferred against the adverse entry is made in paragraph 6 of the Writ Petition No. 441 of
1986. This assertion of the petitioner has not been denied. What is said is that the representation submitted was under process. ""In the meanwhile
Governor's Rule came to be imposed in the State and His Excellency the Governor constituted a high level committee, comprised of two Advisors
to Governor and the Chief Secretary. The said Committee after considering the service record of the petitioner, recommended to the Governor,
premature retirement of the petitioner"". The fact remains that there is no denial to the assertion of the petitioner that his representation was pending.
So far as Writ Petition No. 481 of 1986 is concerned, the stand taken is that the overall record of the petitioner was considered. The petitioner
was allowed to cross efficiency bar on November 11, 1972. It is also said that some remarks were made by this Court which indicated that the
petitioner lacked knowledge about the Rules and Regulations. A warning is said to have been administered on March 20, 1973 Petitioner was
allowed to cross second efficiency bar on October 1, 1978. This is the only material which has been projected in the counter-affidavit filed by the
State. As to what material was available after 1978 has not been indicated. It is in these premises, arguments raised are:
(i) That the adverse report in question if considered in its entirety would show that it is not an adverse report;
(ii) That the remarks made by the Reviewing authority run counter to the remarks given by the authority which was supposed to make these
remarks;
(iii) That a representation was preferred against the remarks and this representation was still pending;
(iv) That the petitioner was permitted to cross the Efficiency Bar and, therefore, the material if any adverse before that date, could not be taken
into consideration.
(v) That even the material which was said to be adverse and which material has been noticed above, is not adverse.
(vi) That the later permission granted to cross Efficiency Bar or the fact that some strictures were made, was not part of the official record and the
fact that this would be treated as adverse entry was never communicated to the petitioner.
It be seen that in Brij Mohan Singh Chopra Vs. State of Punjab, the Supreme Court of India observed that while considering the question of
premature retirement, overall assessment of the Government servant's record is to be taken into consideration. The adverse remarks which have
not been communicated to the employee or against which representation is pending are not to be considered. Again the material which is there
before an employee is promoted, is not to be taken into consideration. It be seen that in Brij Mohan Singh's case, the view earlier expressed in
Gurdial Singh Fijji Vs. State of Punjab and Others, : was taken note of. The requirement to convey the adverse report was held to be essential
safeguard so far as a civil servant is concerned. The relevant paragraph which stands quoted in Brij Mohan Singh's case is being quoted again Brij
Mohan Singh Chopra Vs. State of Punjab,
The principle is well settled that in accordance with the Rules of natural justice, an adverse report in confidential roll cannot be acted upon to
deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct
or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially 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. Unfortunately,
for some reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the
Governments not been able to consider his explanation and decide whether the report was justified.
Supreme Court of India took note of another earlier decision reported as Amar Kant Choudhary Vs. State of Bihar and Others, . In the above
decision, the Supreme Court of India has emphasised that adverse report in a confidential note cannot be acted upon to deny promotional
opportunities unless it is communicated to the person concerned. This was held to be essential so as to enable the concerned employee to improve
himself. The above principles were made applicable to the Brij Mohan Singh 's case and the order of premature retirement was set aside.
The latter view reported as Baidyanath Mahapatra Vs. State of Orissa and Another, again supports the proposition put across by the
petitioner. If representation is made against adverse remarks, then this has to be decided before any further adverse action is taken against a civil
servant. In the present case, petitioner did prefer a representation. This was not decided. As a matter of fact, the reviewing authority made a
recommendation to the effect that the petitioner be prematurely retired. This appears to have weighed with the respondent-State in processing the
case of the petitioner for passing the order which is subject-matter of challenge in Writ Petition No. 481 of 1986. As there is failure to comply with
the principles enunciated by the Supreme Court of India, which principles have been noticed above, there is no alternative but to set aside the
order of premature retirement. The net result would be that both the writ petitions shall stand allowed. The adverse confidential reports could not
be acted upon as petitioner had preferred a representation against the communication addressed to him. This communication was the basis for his
premature retirement. That is also not permitted to stand.
In the totality of circumstances, both the writ petitions are allowed. Petitioner is held entitled to all consequential benefits. Let consequential
benefits be determined and released. A decision in this regard be taken within a period of three months. In case the matter is not decided within a
period of three months, petitioner would be entitled to interest. The rate of interest would be 12%.