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Judgment
Ratnam, J.—This writ appeal has been filed by the appellant against the order in W.P. No. 2626 of 1980, rejecting the prayer of the
appellant for the issue of a writ of mandamus or other appropriate writ, directing the 1st respondent to ignore the communication in D.O.L.R. No.
30/PC/CPO/PTC(M)/CR/79 dated 14-4-1980 and consider the appellant for promotion to the post of Divisional Manager/Works
Manager/Manager (Stores), or to any other post in the same cadre with effect from the day or days, when respondents 2 to 5 were promoted.
Shortly stated, the case of the appellant is as under: The appellant, holder of a Diploma in Automobile Engineering, joined the services of the Tamil
Nadu State Transport Department, as a General Foreman, on 1-7-1964. On the coming into being of the 1st respondent, Pallavan Transport
Corporation (P.T.C. for short) on and from 1-1-1972, the appellant was working in the P.T.C. on deputation and on 2-8-1972, he was promoted
as Assistant Executive Engineer and that was not disputed. On 7-12-1979, an extract of confidential reports containing adverse remarks relating to
the appellant for the period commencing from 21-12-1975 to 31-10-1979, was sent to him, and prior to that, no adverse remarks were
communicated to the appellant, giving any basis whatever for the remarks made. The object according to the appellant, in communicating adverse
remarks regularly and at stated intervals, was with a view to enable the officers concerned to correct themselves and rectify the defects pointed out
and also to prevent arbitrary action on the part of the senior officers or Selection Committees to favour a particular candidate or candidates at the
time of the promotion on the strength of the adverse reports. The adverse remarks in the confidential reports for a period of four years on the eve
of selection for promotion assumed significance, according to the appellant and it was also the case of the appellant that the communication of
confidential reports, in a lot, did not have the support of Service Rules. The appellant also maintained that there were no complaints against him
whatever and no adverse comment about his work was also made by his superiors, but that the adverse remarks had been made deliberately and
without any basis whatever with ulterior motives, in order to overlook the claims of the appellant for promotion to the post of Divisional
Manager/Works Manager/Manager (Stores). On 7-1-1980, the appellant also submitted a detailed representation with reference to the adverse
remarks for ever year with a request that the adverse remarks should be expunged and the appellant should be promoted, ignoring the adverse
remarks made. In the representation made by the appellant, he had given details and particulars, with reference to the nature of work done by him
during the period and his performance as well as the achievement and reiterated that no superior officer had occasion whatever to complain about
the work of the appellant during the period, for which, the adverse remarks had been made. While the representation sent by appellant was
pending, P.T.C. first promoted respondents 2 and 3 as Divisional Managers/Works Managers and later promoted respondents 4 and 5 as
Divisional Managers and was also about to promote respondents 6 and 7 also and at that time, the appellant approached this Court with the writ
petition, praying for the issue of a writ, as already stated, on the ground that the adverse remarks in the confidential reports had not been
communicated to him in time and that, the basis on which the adverse remarks had been made, had also not been disclosed. Stating that the
contents of the confidential reports, particularly, the adverse remarks, were contrary to the facts and records, bearing out his performance and
efficiency, the appellant put forward the plea that the P.T.C. with mala fide intention, had deliberately ignored the claim of the appellant for
promotion and had discriminated him against his juniors, who had been promoted to the post of Divisional Manager/Works Manager/Manager
(Stores). The non-communication of the adverse remarks in time and thereby the non-availability of an opportunity to the appellant to correct and
improve himself, the non-consideration of the representations made prior to the promotion of others and the mala fide action of the P.T.C. in not
considering the claims of the appellant for promotion, resulted, according to the appellant, in the loss of equality of opportunity to him to be
considered for promotion and deprivation of his promotion. On the aforesaid grounds, the appellant sought the issue of a writ, as set out earlier.
In the counter filed on behalf of the P.T.C., it took a rather curious stand that as the representations are confidential, the appellant need not be
informed of the same and that the claim of the appellant that the consolidated confidential report was given at a later stage with ulterior motive, was
not correct. A definite stand was taken that the adverse remarks led the P.T.C., to conclude that the appellant lacked drive and initiative and
therefore, he was not fit for further promotion. It was also the stand of the P.T.C. that the appellant was not found suitable during the years in
respect of which the adverse remarks were made and therefore, those remarks were communicated only later. The P.T.C. also curiously stated
that the appellant was not considered for promotion even before his representation. A plea that the appellant had not alleged any mala fides, was
also raised. Ultimately, the P.T.C. prayed for the dismissal of the writ petition.
The learned Judge, being of the view that the criterion for promotion is not seniority alone, but merit, ability, seniority and regularity in
attendance, concluded that this Court is not a Court of Appeal nor even an Administrative Tribunal to consider the propriety or otherwise of the
orders of promotion, but that the Court was concerned only with seeing that the constitutional provisions relating to equality of opportunity in the
matter of employment, including promotion, were observed. Stating that it was not the case of the appellant that he was not at all considered for
promotion, the learned Judge dismissed the writ petition, observing that the dismissal of the writ petition would not in any manner stand in the way
of the appellant being considered for promotion, in future. It is the correctness of the order so passed that is questioned in this writ appeal.
Mr. N.R. Chandran, Learned Counsel for the appellant, raised three contentions. According to Learned Counsel, though there were no Rules
as such governing the P.T.C. in the matter of communication of adverse remarks in the confidential reports of its employees, justice and fairplay
required that adverse remarks, if any, should be communicated to the concerned persons periodically, as otherwise, the purpose of making such
remarks, would be lost, in that, the person concerned would not be in a position to correct or mend or improve himself as to render him eligible for
further promotion. The promotional opportunity, which otherwise would have been available to the appellant, was lost, according to counsel, on
account of the laches and inaction on the part of the P.T.C. in the matter of communication of adverse remarks. Even as regards the adverse
remarks, Learned Counsel submitted that the confidential reports cannot be relied upon, as most of them were incomplete, in that, the reporting
officer and the countersigning officer have not signed the adverse remarks and such remarks had also not been duly communicated. It was also
submitted that when the confidential report, for the period 1-1-1975 to 20-11-1975 regarding the work of the appellant had been stated to be
good and he was also fit for promotion, on an overall rating ''good'', it was obvious that the subsequent entries like lack of initiative and drive had
been recorded without any basis whatever solely for the purpose of denying promotion to the appellant. Referring to the representations made
against the adverse remarks, by the appellant, Learned Counsel pointed out that in the ordinary and normal course, the representations should have
been taken into account and only thereafter, the promotion of the appellant as well as respondents 2 to 5 should have been considered and that not
having been done, the appellant is entitled to come before this Court complaining of the irregularity and seeking the remedy by way of a writ.
Reliance in support of this contention was also placed by Learned Counsel upon the decisions in Brij Mohan Singh v. State of punjab A.T.R. 1987
S.C. 948.; Baidyanath Mahapatra Vs. State of Orissa and Another, and S. Maheswar Rao Vs. State of Orissa and Another, . On the other hand,
Learned Counsel for the respondents, while admitting that there are no Rules with references to the communication of adverse remark in
confidential reports and that adverse remarks must also be communicated within a reasonable time, but had not been so communicated to the
appellant in this case and further that, the representations also should have been considered prior to the consideration of promotion of respondents
2 to 5 and that indisputably the appellant was a senior and was also regular in attendance, pointed out that under Special Rr. 2(b), promotion shall
be made on the ground of merit, ability, seniority and regularity in attendance and since the appellant had been found wanting by reason of the
adverse remarks in merit and ability, his claims were rightly overlooked. Reference in this connection was made by the Learned Counsel to the
decisions reported in Union of India (UOI) Vs. Mohan Lal Capoor and Others, and State Bank of India and others Vs. Mohd. Mynuddin, .
Before we proceed to consider the aforesaid rival submission, we have to refer to certain uncontroverted and admitted facts. There are no Rules
framed by the P.T.C. with reference to the preparation of the confidential reports of its employees and also the communication to them of the
adverse remarks, if any, within a specified or even a reasonable time. Even Learned Counsel for the respondents accepted that if adverse remarks
are made in the confidential reports, justice and fairplay required that they are communicated to the concerned person and that in this case, the
adverse remarks for the period 21-11-1975 till 31-10-1979 were not communicated tilt 7-12-1979. Equally, Learned Counsel for the
respondents accepted that the representations sent by the appellant on 7-1-1980 upon the communication of the aforesaid adverse remarks to
him, ought to have been taken into account prior to the consideration of the claims of the appellant as well as respondents 2 to 5 for promotion.
Again, that the appellant had the requisite seniority and was also regular was not disputed. It is significant that the P.T.C. in its counter, had clearly
taken the stand that the non-consideration of the claims of the appellant for promotion was only on the basis of the adverse remarks that the
appellant lacked drive and initiative. Unfortunately, in the absence of Rules and also perhaps the practice in regard to the communication of
adverse remarks to the persons concerned, P.T.C. had taken it easy and had not communicated the adverse remarks against the appellant, for
several years, till 7-12-1979. This has considerably prejudiced the appellant and that cannot at all be denied. In Brij Mohan Singh v. State of
Punjab A.T.R. 1987 S.C. 948, the Supreme Court pointed out that an adverse entry should be communicated to the concerned person, as the
object and purpose underlying such communication, is to afford an opportunity to improve his work and conduct and also to make representations
to the Authority concerned against those entries and if such a representation is made, it is imperative that he Authority should consider the
representation with a view to determine as to whether the contents of the adverse entries, are justified or not. The Supreme Court also regarded
the making of representation as a very valuable right and if the representation was not considered, that was bound to affect the officer and his
service career, as promotion, increment, etc., would all depend on the scrutiny of the service rendered. In clear and unmistakable terms, the
Supreme Court also laid down that the adverse report in a confidential roll, cannot be acted upon to deny promotional opportunity, unless its 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. Though the Supreme Court was dealing with a case of premature retirement, on the basis of adverse entries in the confidential reports,
we are of the view that the same principle would govern even cases of promotion. Again in Baidyanath Mahapatra Vs. State of Orissa and
Another, the Supreme Court pointed out that the purpose of communicating an adverse entry is to inform the employee regarding his deficiency in
work and conduct and to afford him an opportunity to make, amend and improve his work and further, if the entries are not justified, the
communication affords him an opportunity to make representations. The Supreme Court also proceeded to state that if the adverse remarks
awarded to a Government servant are communicated to him after several years, the object of communicating the entries is defeated and it is,
therefore, imperative that the adverse entries awarded to a Government servant must be communicated to him within a reasonable period to afford
him an opportunity to improve his work and conduct and also to make representations, in the event of the entry being unjustified. In the case
before the Supreme Court, adverse entries relating to several years were communicated to the employee concerned in one lot and there was some
delay on the part of the employee in making his representations against the adverse remarks and the representations were, dismissed as belated. In
that context, the Supreme Court pointed out that the communication of the adverse entries, was itself belated and the representation against those
adverse remarks should have been considered on merits and could not have been rejected, as at least with reference to two years, the period
prescribed for making representations, had not expired and the recommendation against the retention in service without waiting for a disposal of
the representation in respect of adverse remarks for the years 1981-82 and 1982-83, was not in order. S. Maheswar Rao Vs. State of Orissa and
Another, dealt with a case of premature retirement on the basis of adverse entries for the years 1980-81 to 1982-83. Representations against
those remarks had been made, but had not been considered and disposed of and the adverse remarks for 1981-82 and 1982-83 were taken into
consideration and an order of premature retirement was passed, which was questioned. In holding that the course adopted was a serious error, the
Supreme Court pointed out that the representation against the adverse entries, had been made in time, and that had not been considered or
disposed of, but, instead, a premature retirement order had been issued and that had resulted in denial of opportunity to the appellant from making
representation against the adverse entries. The Supreme Court also laid down that the course to be adopted in such cases that the Review
Committee should have deferred the consideration of the case for premature retirement till his representation on the adverse remarks, was
disposed of. What we find on the facts of this case is that the adverse remarks in the confidential reports had not only not been communicated in a
reasonable time, but such adverse remarks are also incomplete. We may, in this connection, point out that even at the time when the appeal was
entertained, P.T.C. was directed to produce the confidential reports of the appellant, but there was some reluctance on its part to so produce and
that led to the appellant to file C M.P. No. 10120 of 1992 praying for directions for the production of the confidential files. However, at the time
of the hearing of the appeal, xerox copies of the confidential reports relating to the appellant for the relevant years, had been produced by the
P.T.C. It is seen there from that they had not been either periodically or even regularly entered and signed by the reporting Officer and the
countersigning Officer. For some years, it is seen that there is no countersignature at all by the Head of the Department. We do not see how these
adverse entries in the confidential reports could be put against the appellant as assessing either his merit or ability, for the purpose of promotion, in
the absence of such assessment by the Head of the Department or other concerned Officer. Apart therefore, from the defective confidential
reports, it is seen that the adverse remarks had not been communicated to the appellant in time and also regularly and if that had been done, the
appellant certainly would have attempted to improve his performance. In any event, at the time when the promotion of respondents 2 to 5 came to
be considered, the appellant had preferred his representations on 7-1-1980, against the adverse remarks communicated to him on 7-12-1979.
Before considering the question of promotion of the appellant as well as respondents 2 to 5, the P.T.C. had not taken into account the
representations made by the appellant against the adverse remarks. Instead, the P.T.C. has, as could be seen from the proceedings of the 27th
Appointment Committee dated 24-3-1980, rejected the representations of the appellant and had also brusquely brushed aside the claim of the
appellant for promotion on the same day and the only reason given for rejection of the claims of the appellant was that he had been consistently
declared to be not fit for promotion. As pointed out by the Supreme Court in the decisions referred to earlier, the representations should have been
taken up by the P.T.C. and dealt with prior to the consideration of the claims of the appellant as well as others for promotion, as otherwise, it is
difficult to accept that the Appointment Committee was not in any manner influenced by the adverse remarks made against the appellant,
concerning which, representations were also made and pending. It would, therefore, be proper to draw an inference that only the adverse remarks
weighed with the Appointments Committee and not the representations made against it, by the appellant, in the matter of non-consideration of the
claims of the appellant for promotion. The non-communication of the adverse remarks periodically and within a reasonable time, the failure to
consider the representations made against the adverse remarks prior to the consideration of the promotion of the appellant as well as others, had
undoubtedly, made the appellant lose an opportunity to be considered for promotion. In other words, the appellant had been deprived of equality
of opportunity in the matter of his promotion to the higher post, owing to the non-communication of the adverse remarks against him in due time as
well as the non-consideration of the representations made by him, prior to the consideration of the claim of the appellant as well as respondents 2
to 5 for promotion. In so far as the argument of Learned Counsel for the P.T.C. is concerned, we do not find any substance in it. When, even
according to the P.T.C, the rejection of the claim of the appellant for promotion was (sic) (due to) the adverse remarks, it cannot now be
permitted to put forward any other case in that regard. The lack of merit and ability attributed to the appellant is referable only to the adverse
entries in the confidential reports and our attention has not been drawn to any prior complaint against the appellant by any of his superiors or any
other material during the relevant period, which would justify the conclusion that he lacked merit and ability. We are, therefore, unable to hold that
the lack of merit and ability had led to the non-consideration of the claims of the appellant for promotion. The decisions reported in Union of India
(UOI) Vs. Mohan Lal Capoor and Others, and State Bank of India and others Vs. Mohd. Mynuddin, may now be referred to. In the first of the
cases, the Supreme Court points out that merit is an elusive factor, capable of being judged from different angles, or, by the application of varying
tests by different persons or by the same person, at different times. In this appeal, apart from the adverse remarks in the confidential reports, as
pointed out earlier, there had been no other method of evaluating this elusive factor and that, as we pointed out earlier, cannot be decisive of the
question, especially when these adverse remarks had been disputed by the appellant. Likewise, the latter decision also does not assist the P.T.C.
Even that decision points out that if promotion had been denied arbitrarily or without any reason, the Court can issue a direction to the management
to consider the case of the Officer, but it cannot issue promote the officer concerned to a higher post without giving an opportunity to the
management to consider the question of promotion, as the Court, by its very nature, cannot appreciate the abilities, qualities or attributes necessary
for the task, office or duty of every kind of post. However, in this case, the only ground for excluding the claim of the appellant for promotion, even
according to the P.T.C., was the adverse remarks and in view of our earlier discussion regarding the purpose of communication of adverse
remarks, the making of representations, the need to consider those representations before finalising promotions, etc., we are of the view that the
above decision of the Supreme Court cannot be applied in its entirety to the facts of this case, so as to deprive the appellant of promotion, as
claimed by him. We must also point out that in the course of the affidavit filed in support of the writ petition, the appellant had attributed mala fides
to the P.T.C., as could be seen from para 10 thereof and sub para (F) in para 11. With regard to this, in para 9 of the counter affidavit filed by
P.T.C., it was stated that the appellant had failed to allege mala fides. In our view, there is one circumstance which would throw very serious
doubts about the bona fides of the P.T.C. Obviously the P.T.C. desired the promotion of respondents 2 to 5 to be a fait accompli. Though the
appellant had submitted detailed representations on 7-1-1980, against the adverse remarks communicated to him on 7-12-1979, the
representations had. been rejected in the communication addressed to the appellant on 14-4-1980, after the promotion of respondents 2 to 5 The
inference is irresistible that the P.T.C. deliberately and with mala fide intentions kept the representations of the appellant pending without
considering the same prior to a consideration of the promotions and had rejected the claim of the appellant for promotion and promoted
respondents 2 to 5 and had, thereafter, communicated the rejection of the representations of the appellant on 14-4-1980. This can hardly be
considered a reasonable or fair way of consideration of the claims of the appellant for promotion. The appellant therefore, rightly attributed mala
fides to the P.T.C. in the matter of his promotion and in such a case, even according to the decision of the Supreme Court in State Bank of India
and others Vs. Mohd. Mynuddin, , relied on by the P.T.C, when the process of selection is vitiated by mala fides, other considerations would arise
and that would justify the issue of a writ as prayed for by the appellant in this case, inclusive of a direction to promote him, as and from the date,
when respondents 2 to 5 were promoted to the higher post. We are of the view that the learned Judge, who dealt with the writ petition, had not
looked into and appreciated the basis on which the appellant had come to this Court with a complaint that his promotional opportunities had been
overlooked by commission of grave irregularities, but had proceeded to deal with the matter, as if this Court was called upon to consider the
propriety of the order impugned, as a Court of Appeal or an Administrative Tribunal. We hasten to add that we do not subscribe to this erroneous
view of the learned Judge.
We accordingly allow the writ appeal and direct the 1st respondent, P.T.C. to promote the appellant to the post of Divisional Manager/Works
Manager/Manager (Stores) with effect from the date or dates, when respondents 2 to 5 were promoted to such posts and also to such other
higher or other posts, to which they might have been promoted meanwhile. The appellant will be entitled to his costs throughout. Counsel''s fee in
writ appeal Rs. 2,000. Counsel fee in writ petition Rs. 1000. Before parting with this case, we are constrained to observe that this case discloses a
distressing as well as the disturbing feature in the matter of the writing up of the confidential reports of the employees of the P.T.C. and the
communication of adverse remarks within a reasonable time as well as the consideration of representations made against those adverse remarks.
We may point out that the method and manner adopted by the P.T.C. leaves much to be desired and in the interests of the employees of the
P.T.C. as well as to enable it to fairly and justly consider the claims for promotion as Well as other matters, it is necessary for the P.T.C. to
consider the framing of appropriate rules with regard to the writing up of the confidential reports'', the communication of adverse remarks, the
receipt of representations and their consideration, etc. on the lines in G.O. No. 11, P & A.R. (Per-R) Dept. dated 5-1-1984.