Rajendra Kishan, RAS vs The State of Rajasthan

REPORTABLE

Heard counsel for the parties.

Brief facts that cull out from the present petition are that the

petitioner, who is an officer from the Rajasthan Administrative

Services, filed the present writ petition whereby he has challenged

the adverse remarks entered in his Annual Confidential Report

(ACR) for the period from September, 1994 till March, 1995

stating that the disposal of cases was less than the required

standard. The adverse remark was conveyed by communication

dt.21/11/1995 while he was holding the post of Sub-Divisional

Officer, Bhawani Mandi. The adverse remark is however with

regard to the period when he was posted as Sub-Divisional Officer,

Sojat, Distt. Pali (hereinafter referred to as ''SDO'') for the period

from September, 1994 to March, 1995. At the material time, the

petitioner''s reporting officer was the Collector, Pali and the

reviewing officer was Divisional Commissioner, Jodhpur. The

accepting authority is the Chairman, Board of Revenue.

It is stated by the petitioner that his six monthly report was

very satisfactory and there was no complaint nor any letter was

given to him in respect of improvement of work. A certificate to

the effect was issued by the District Collector, Pali on 07/09/1994

informing that the petitioner''s work was excellent in the first six

month''s period of 1994-95.

The present remark is however for the period from

September, 1994 till March, 1995 for which it has been stated that

the disposal of cases was found to be less in accordance with the

norms fixed by the Government. It is submitted by the petitioner

that the norms fixed by the State Government were that one must

dispose of ten suits or 30 applications per month, which means for

the relevant period from 1st September, 1994 to 31st March, 1995,

the SDO was required to decide 70 suits or 210 applications in

seven months.

It is further submitted that the State Government itself has

provided relaxation in the standards for the period when there was

an election as the SDO was required to do several administrative

jobs and during the election period, he is not supposed to fully

devote to judicial work. As the matter relates to the elections, top

priority has to be given with regard to the election work and date

wise programme is laid down for conducting of elections. The

petitioner has stated that he was required to prepare the electoral

list and strictly adhere to the directions issued by his officers for

the purpose of preparation of elections.

Further, it has been stated that the Lawyers went on strike

from 08/08/1994 to 07/10/1994 on the call given by the Bar

Association, Sojat where the petitioner was posted. It is stated

that no Advocate was appearing in any of the cases before the

petitioner and on account of non-appearance of the Advocates,

disposal of the revenue suits/cases as well as the

applications/petitions was not possible as cross-examination of the

witnesses is required to be done by the Advocates and even the

misc. applications are required to be heard in the presence of the

Advocates. The work of disposal of revenue suits is akin to that of

civil cases and the judicial procedure has to be strictly followed.

The litigants, who appear in person, are uneducated persons and

it cannot be expected from them to present their cases or argue

their cases relating to the revenue suits and therefore, the work of

disposal comes to a stand-still.

From 01/01/1995 to 31/03/1995, the period was that of

elections and as per directions of the Government itself, 50%

relaxation during the election period has been provided. It is also

stated that for the period from 02/11/1994 to 15/11/1994, the

petitioner was on earned leave.

Accordingly he submitted a detailed representation pointing

out such relaxation as provided by the Government and for the

period during which the strike was there and for the period during

which he had remained on leave, the norms fixed by the Board of

Revenue could not be said to be required to be fulfilled. In view

thereof, it was stated that for the period from 08/08/1994 to

07/10/1994, relaxation of 20 suits or 60 applications for the two

months period and for the period from 02/11/1994 to

15/11/1994, relaxation of 5 suits or 15 applications and for the

three months period between 01/01/1995 to 31/03/1995,

relaxation of 15 suits on the basis of 50% was required to be

given. Thus, total 40 suits or 120 applications were required to be

deducted out of the 70 suits or 210 applications. Thus from

01/09/1994 to 31/03/1995, 30 suits or 90 applications were

required to be decided whereas in comparison to that, it is

submitted that the petitioner completed 47 suits and 57

applications in the relevant period and was thus above standard

and had completed 160% disposal of cases. The 50% of the

disposal relaxation had been given on 19/02/1996 as per the

documents placed before this Court while the adverse remark has

been entered in the year 1995 itself and in this manner, the

adverse remarks ought to have been expunged.

It is further submitted that the representation in the

aforesaid terms was however rejected by the authorities vide

letter dt.24/05/1996 and no reasons whereof were mentioned in

the rejection letter.

On the basis of the aforesaid facts, it has been contended

that the adverse remark was wholly unwarranted and could not

have been entered in his ACR for the yar 1994-95. It is further

submitted that the representation made against the adverse

remark was also wrongfully rejected and the authority considering

the representation did not apply its mind to the fact that 50%

relaxation had already been granted subsequently by the State

Government in disposal of the cases during election period. It is

stated that even otherwise, regarding disposal of work, norms are

laid down but the circumstances have also to be looked into if the

disposal is not upto the level. However, while entering the adverse

remark, the circumstances that there was a strike going on by the

Advocates for a period of two months and that the petitioner

himself was on leave for a period of fifteen days ought to have

been looked into for the lower disposal. Be that as it may, once

these facts were brought to the knowledge of the respondents by

way of representation, the adverse remark could not have been

retained on his dossier and the same required to be expunged. It

is submitted that the very purpose of calling for a representation

is that the authority may objectively examine the facts and reach

to a conclusion whether the concerned adverse remark was

rightfully made or not. However, in a mechanical manner, the

adverse remark was entered in his ACR and the representation

was also mechanically rejected.

Counsel for the petitioner has pointed out that the said

adverse remark was neither entered by the reporting officer who

had remarked his work as outstanding nor was the same entered

by the reviewing officer who too had found the work of the

petitioner outstanding, but it was made at the level of the

accepting authority i.e. the Chairman, Board of Revenue. Referring

to the provisions of the APAR Rules of 1976, it has been submitted

that the provisions of the APAR Rules of 1976 have not been

followed and no letter of improvement was ever sent to the

petitioner by his superiors.

It is also submitted that before downgrading the ACR of the

petitioner, the Chairman, Board of Revenue has not given any

reasons and in this regard, he has referred to the judgment

passed in the case of U.P. Jal Nigam Vs. Prabhat Chandra Jain:

(1996) 2 SCC 363 and Dev Dutt Vs. Union of India and others:

(2008) 8 SCC 725.

Per-contra, counsel for the respondents has raised

submission that the adverse remark in the ACR could not have

been independently challenged and the same can be only

challenged when a person is denied promotion and that too before

the Rajasthan Civil Services Appellate Tribunal under the

provisions of the Rajasthan Civil Services Appellate Tribunals Act,

1976. Secondly, it has been urged by the respondents that the

petitioner''s assertion relating to the norms relaxation is unfounded

and if the disposal of the petitioner is looked upon, he has

disposed of 47 suits and 57 applications as per his own admission

whereas he was required to dispose of 70 suits and 210

applications in the period between 1 st September, 1994 to 31st

March, 1995. Although it is stated at the bar that on the day when

the adverse remark was communicated, 50% relaxation awarded

by the State Government vide letter dt. 19/02/1996 was not

available before the accepting authority and he has, therefore,

rightly treated the disposal as on the lower side, but even

otherwise, a calculation sheet has been mentioned in reply

showing that even if the relaxation is allowed for three months

period, he has disposed of only 31 cases as against 70 cases. It is

further submitted that the plea of relaxation of 50% was not taken

in the representation dt.06/12/1995 but if that consideration is

also taken, the total number of cases which he was required to

dispose of was 55. As regards the earned leave, it is stated that

normally holidays in between earned leave cannot be taken into

consideration for the purpose of quota and the State Counsel has

therefore one way or other supported the adverse remark of lower

disposal of cases.

Upon a specific query being made to counsel for the

respondents that whether the holidays are deleted from the total

working days in the year, no answer to the same has come

forward. Counsel for the respondents however stated that for an

SDO, norms have to be laid down for the purpose of disposal of

cases and if he does not achieve the norms, adverse remarks can

be entered in his ACR. The requirement of issuing a letter for

improvement would not arise as the disposal part is only looked

into at the time when the ACR format is received where there is a

column of the number of disposal done by the concerned officer.

Day to day report of the disposal is not taken and in this manner,

therefore, the requirement as submitted by the petitioner of giving

a letter of improvement during the course of the year would not

apply in the case of an SDO. Counsel for the respondent State

further submits that the very purpose of ACR is to inform the

concerned officer of the work which he has done and for making

an improvement in the same and if he has not achieved the norms

and he is cautioned of remark in his ACR, the officer would

improve himself in the subsequent year. It is, therefore, stated

that no interference is called for in the present matter.

Heard counsel for the parties.

In the cases where Courts are concerned with the judicial

review of the administrative action, the parameters within which

administrative action can be reviewed by the Courts are well

settled. No doubt, the scope of judicial review is limited and the

Courts do not go into the merits of the decision taken by the

administrative authorities but are concerned with the decision

making process. Interference with the order of the administrative

authority is permissible when it is found to be irrational,

unreasonable or there is procedural impropriety. However, where

reasonable conduct is expected, the criterion of reasonableness is

not subjective but objective, albeit the onus of establishment of

unreasonableness rests upon the person challenging the validity of

the acts. It is also trite that while exercising limited power of

judicial review on the grounds mentioned above, the court can

examine whether administrative decisions in exercise of powers,

even if conferred in subjective terms are made in good faith and

on relevant considerations.

The Courts inquire whether a reasonable man could have

come to the decision in question without misdirecting himself on

the law or facts in a material respect. The decision of the

administrative authority must be related to the purpose of the

enabling provisions of Rules or Statutes, as the case may be. If

they are manifestly unjust or outrageous or directed to an

unauthorized end, such decisions can be set aside as arbitrary and

unreasonable. Likewise, when action taken is ultra vires, such

action/decision has no legal basis and can be set aside on that

ground. When there are Rules framed delineating the powers of

the authority as well as the procedure to be followed while

exercising those powers, the authority has to act within the limits

defined by those Rules.

A repository of power acts ultra vires either when he acts in

excess of his power in a narrow sense or when he abuses his

power by acting in bad faith or for an inadmissible purpose or on

irrelevant grounds or without regard to relevant considerations or

with gross unreasonableness.

Having heard counsel for the parties and reflecting to the

records as mentioned herein above, it is seen that the object of

writing the confidential reports and making entries in them is to

give an opportunity to the public servant to improve his

excellence. Article 51-A(j) of the Constitution of India enjoins upon

every citizen a primary duty to consistently endeavour to prove

excellence, individually and collectively as a member of the group.

Giving an opportunity, the individual employee strives to improve

excellence and thereby efficiency of administration is augmented.

Keeping this aspect in view, this Court has to deal with the

objections raised by the State Counsel as well as the submissions

advanced by counsel for the petitioner praying for expunging of

the adverse remark.

At the outset, this Court would first deal with the objections

raised by the State with regard to maintainability of the writ

petition. It has been alleged by counsel for the State that the

adverse remark could only be challenged had it affected the

promotion and it is his submission that only at the time when a

person is superseded, he may file an appeal before the Rajasthan

Civil Services Appellate Tribunal challenging his supersession and

at the same time, he may also challenge the adverse remarks.

The submission is required to be noticed and rejected at the

threshold. This is so in view of the verdict of the Full Bench of this

Court in the case of Tayyab Ali Vs. State of Raj. : 1988 (2) RLR 1

where the Court held that one can approach the Tribunal under

the Act of 1976 only for the service matters enunciated under

Section 2(f) (iv) of the Act of 1976 which did not mention adverse

remarks and therefore, an appeal challenging the adverse remark

was held to be not maintainable. In the said case, it was therefore

further observed that while challenging promotion, one may also

challenge the adverse remarks. However, independently the

adverse remarks could be only challenged by way of writ petition.

The writ petition, therefore, is maintainable.

As regards the submissions of the petitioners are concerned,

it is seen that the adverse remark has been entered at the level of

the accepting authority. While the reporting officer and the

reviewing officer have given a remark of "outstanding", the

accepting authority has looked into the disposal of cases done by

the concerned officer and has made a remark of "lower disposal of

cases". The authority of the accepting officer who made the

remark cannot be said to be exceptional. Power is available to him

to make such a remark, otherwise, the very purpose of there

being a third level i.e. of accepting authority would stand defeated

and on that count, the argument raised by the petitioner that the

accepting authority could not have made such a remark, is wholly

unfounded and is rejected.

The question, however, remains two fold. Firstly, the action

of downgrading i.e. from outstanding to an adverse remark at the

level of the accepting authority and secondly, factual aspects. As

regards the first part regarding downgrading is concerned, the law

has been already settled in the case of U.P. Jal Nigam and others

Vs. Prabhat Chandra Jain and others: (1996) 2 SCC 363 whereby

it was held ad-infra:-

"We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employees concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from ''very good'' to ''good'' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him

of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court."

Thus reasons are required to be mentioned for such

downgrading. However, this Court finds that no reason has been

recorded by the accepting authority.

So far as the law laid down in the case of Dev Dutt Vs. Union

of India and others: (2008) 8 SCC 725 is concerned, the same

only relates to the requirement of communication of remarks and

is not relevant for the purpose of disposal of the present petition.

A look at the adverse remark communicated to the petitioner

would show that the same was communicated to him on

21/11/1995 and he submitted representation on 06/12/1995.

Relaxation in the norms was granted by the State on 19/02/1996

and the rejection of his representation was made on 24/05/1996.

Thus, on the day when his representation was rejected, the norms

had been relaxed and therefore, the action of treating the remarks

as an adverse remark as on 21/1/1995 and the order of rejecting

his representation, cannot be allowed to be sustained. As per the

norms relaxed and the record, as pointed out by the petitioner, he

was entitled for relaxation of 50% for the period from 01/10/1995

to 31/03/1995. Thus, 15 suits (5 suits per month) or 90

applications were required to be relaxed. Similarly, for the period

from 08/08/1994 to 07/10/1994 i.e. during the period when the

strike was going on, it cannot be presumed that an officer would

be able to achieve the norms in absence of counsels and final

disposal of suits during the said period, without evidence being

recorded and the witnesses being examined, is also not possible.

Similarly, during the period from 02/11/1994 to 15/11/1994, the

petitioner was on earned leave i.e. for 15 days and as such he

cannot be supposed to be deciding the cases. All these aspects

have been completely ignored while deciding the representation.

Even the reply does not reflect to the aspect relating to the period

of strike nor any submission has come forward during the course

of arguments.

In view thereof, factually too, the adverse remark cannot be

said to be founded on any basis and was totally unwarranted. The

law in this regard is very well settled. This Court in the case of

Roop Singh Jodha Vs. State of Rajasthan and others: 2007(1)WLC

(Raj.) 70 has held in Para 8 of its judgment ad-infra:-

"8. It is trite law that an officer entrusted with duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, on statement of facts, an overall assessment of the performance of the Reporting Officer. However, at the same time, the Reporting Officer before forming an opinion adverse to the Subordinate Officer should confront the Officer with such information and then only the same may be made part of the report. Reference in this connection may be made to the following observation of the Hon''ble Apex Court in State of U.P. Vs. Yamuna Shanker Misra reported in 1997(4) SCC 7:-

"....The Officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an over all assessment of the performance of the Subordinate Officer. It should be founded upon facts or circumstances.

Before forming an opinion to be adverse, the Reporting Officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so

that he will have an opportunity to know the remarks made against him."

The Apex Court in the case of State of U.P. Vs. Yamuna

Shanker Misra and another: (1997)4 SCC 7 has held "The officer

entrusted with the duty to write confidential reports, has a public

responsibility and trust to write the confidential reports

objectively, fairly and dispassionately while giving, as accurately

as possible, the statement of facts on an overall assessment of

performance of the subordinate officer. It should be founded upon

facts and circumstances. Though sometimes, it may not be part of

the record, but the conduct, reputation and character acquire

public knowledge or notoriety and may be within the knowledge of

such officer. Before forming an opinion to make adverse entries in

confidential reports, the reporting/reviewing officers should share

the information which is not a part of the record, with the officer

concerned. This amounts to an opportunity given to the

erring/corrupt officer to correct the errors of the judgment,

conduct, behaviour, integrity or corrupt proclivity. If, despite giving

such an opportunity, the officer fails to perform the duty or correct

his conduct or improve himself, necessarily the same is to be

recorded in the confidential report and a copy thereof supplied to

the affected officer so that he will have an opportunity to know the

remarks made against him. If he feels aggrieved, it would be open

to him to have it corrected by making appropriate representation

to the higher authorities or any appropriate judicial forum for

redressal. Thereby, honesty, integrity, good conduct and efficiency

get improved in the performance of public duties and standards of

excellence in services constantly rises to higher levels and it

becomes a successful tool to manage the services with officers of

integrity, honesty, efficiency and devotion."

This aspect, as noted above, not only applies on the officer

who has entered the adverse remark but also applies on the

officer who decides the representation and at that time when the

concerned officer is deciding the representation, against the

adverse remarks made by the concerned officer, an onerous duty

is cast upon him to look into the record and examine whether the

adverse remark was entered objectively or not and if it is found

that the remark entered was without any basis, the same must be

expunged. That is the very purpose of allowing the concerned

Government Servant to make a representation against the

adverse remarks otherwise, it would be only an exercise in futility.

In the case of Dr. Gyan Chand Jain Vs. State of Rajasthan

and another: 1993(1) WLC (Raj.) 526, this Court has held ad-

infra:-

"10.In the present case, apart from the materials which have come on record in the form of various documents placed by the petitioner it is evident that the petitioner did not make a detailed representation against the adverse remarks and pointed out that he had performed his duties well. No targets had been fixed for motivation of sterilisation cases and that between 1983 to 1988 he had motivated 22 steri lisation cases and had worked as Assistant Surgeon in the Laproscopy team. The respondents have not been able to show as to in what manner the representation made by the petitioner was considered by the

government; what weightage was given to the reasons specified by the District Magistrate regarding the slow progress of Family Planning Programme and at the same time, the respondents have failed to produce any material before the court to justify the making of adverse remarks in the Annual Performance Appraisal Report of the petitioner while at the same time, no such remarks have been made in the APARs of other similarly situated persons, although they had not motivated any case for sterlisation. The failure of the government to show a fair and just consideration of the representation and its failure to offer any explanation for making adverse entry in the APAR of the petitioner and not in the APARs of the similarly situated Doctors leads to an inference that the respondents have acted arbitrarily and unjustly in making adverse remarks in the Annual Performance Appraisal Report of the petitioner. The petitioner has clearly been subjected to discriminatory treatment and there is no rationale or justification for this discrimination qua the petitioner."

Having looked into the facts supra, this Court finds that the

representation was decided in a very casual, mechanical and

lackadaisical manner. There has been a complete ignorance to the

record which was available with the authority deciding the

representation.

The petitioner cannot be said not to have achieved the

targets and norms laid down after the required relaxation and

considering the strike of lawyers and leave taken by him, such

remark can be said to have been entered arbitrarily by the

accepting authority without looking into the circumstances

prevailed in the year of consideration when elections were held.

Similar is also the situation which applies on the authority who

examined the representation.

Consequently, the writ petition stands allowed. The adverse

remark entered in the ACR of the petitioner for the year 1994-95

(for the period from 01/09/1994 to 31/03/1995) is expunged and

the order of rejecting his representation dt.24/05/1996 is quashed

& set aside. In consequence thereof, the remark entered by the

reporting officer and the review officer shall be maintained with all

consequential benefits. If due to the adverse remark, the

petitioner has been denied promotion or any other service benefit,

the State is required to re-examine his record and review his case

for promotion and other benefits within a period of three months

from the date of submission of certified copy of this order. Costs

made easy.