D.V.Dixit vs State of U.P.and others

I.S. Mathur, J.—The petitioner prays for a writ in the nature of Certiorari quashing the judgment and order of the U.P. Public Services Tribunal No. 3, dated 2141992, (Annexure No. 12 to the writ petition) and also the adverse entries recorded for the period 4111986 to 3131987 and 141987 to 1781987. He further prays for a writ of Mandamus commanding the state Government to get his case reconsidered by the selection committee for appointment/promotion to the higher scale in the P.C.S. and further promotion etc.

The petitioner was appointed on 1561967 in the U.P. Civil Service (Executive Branch), hereinafter referred as P.C.S., as a result of competitive examination held in 1965. He was confirmed with effect from 111970 and was allotted the year 1966 as his year of allotment. He was promoted to the senior scale of the service with effect from 271275 and was confirmed in the said scale with effect from 831984. He was promoted and appointed to the selection grade (Special Grade) of the service on 28101983 and confirmed in that scale with effect from 2041989. The criteria for selection for appointment in the said scale of PCS was merit.

The petitioner was awarded two adverse entries for the period 4111986 to 3131987 and 141987 to 1781987 by the opposite party No. 2 Shri D.K. Mittal, who was at that time Vice Chairman of the Allahabad Development Authority. During this period the petitioner was working as Secretary of the Authority. These two entries read as follows :

I agree with the assessment of the Vice Chairman, Allahabad Development Authority.

Commissioner, Allahabad Division 81287

I agree with the assessment of the Vice Chairman, Allahabad Development Authority.

Commissioner, Allahabad Division. 81287

Accepted.

Former Chief Secretary, U.P. 22689"

These entries were communicated to the petitioner vide D. O. letter dated 9th August, 1989 (Annexure No. 1 to the writ petition).

The petitioner made two separate representations dated 6111989 and 17111989 (Annexures 3 and 4 to the petition) to the State Government against two adverse entries. On a consideration of the representation in respect of the entry for the period 141987 to 1781987, the State Government directed only the following part to be retained and rest to be expunged.

This order was communicated vide D. O. dated 18th May, 1992 (Annexure No. 5). In regard to the entry for the period 4111986 to 3131987, the State Government Directed the following portion of the entry to be expunged and the rest to be retained :

This order was communicated vide D.O. dated 27891, annexure to the supplementary affidavit dated 1571992.

The petitioner submitted a memorial dated 29111991 (Annexure No. 6 to the petition) to His Excellency the Governor. This memorial, was, however, rejected by order dated 1821992 (Annexure No. 7 to the petition).

The petitioner then filed a claim petition No. 56(a)/III/1991 before the U.P. Public Services Tribunal No. 3 (Annexure No. 10 to the writ petition). By an interim order, dated 2011991, the Public Services Tribunal directed the opposite parties not to take into consideration the impugned adverse entries for the purpose of promotion to the higher scales of P.C.S. However, the Public Services Tribunal finally disposed of this petition with the directions that the opposite parties shall consider and decide the pending representation/memorial of the petitioner against the impugned adverse entries within three months from the date of the order. It was directed that, till such time the pending representations are finally decided by the opposite parties, the impugned adverse entries shall not be read against the petitioner.

Aggrieved by the decision of the Public Services Tribunal and also by the orders passed by the State Government on the representations of the petitioner, the petitioner has now filed this writ petition. The petitioner challenges these adverse entries on the grounds that they have been recorded by Shri D.K. Mittal, Opposite Party No. 2, or account of malice and in violation of the standing orders of the Government. It is alleged that neither the mandatory time schedule prescribed by the Government Order dated 30101986 nor the guidelines given in the Government Order dated 28121959 for withholding the integrity certificate have been followed in the present case. The petitioner claims that the remarks recorded in these two adverse entries are vague and of general nature and could not legally be allowed to stand. His further submission is that the remarks for the period 141987 to 1781987 were also of general nature and have been expunged and the remarks for the earlier period 4111986 to 3131987 being of the same nature, should have also been expunged. It is also alleged by the petitioner that there was no factual basis for the said two adverse entries as per details given by him in his memorial to the Governor and the order rejecting the memorial has been passed mechanically without application of mind. The judgment and order of the Public Services Tribunal is also challenged on the ground that it is a cryptic and laconic order and does not deal with the various facts and contentions raised by the petitioner.

The petitioner has also alleged that the matter relating to promotion to the higher scale of P.C.S. was considered in September/October, 1989 but due to these two adverse entries, his case was not favourably considered even though he had good confidential record and had even been promoted to the selection grade on the basis of that record and confirmed in April, 1989. It is further claimed by him that these adverse entries also adversely affected his selection to the I.A.S. cadre held in February, 1990 as the State Government failed to take a decision on his representation within the time mentioned in the various Government orders including the G.O. dated 30101986. Another selection for higher scale of P. C. S. was held in May, 1990 but he was not selected on account of these entries nor his case was favourably considered for the purpose of I. A. S. select list for which a selection was held on 2621991. Yet another selection for the higher scale of P. C. S. was conducted by the State Government during September/October, 1991 and for the I. A. S. on March 26/27, 1992 but the petitioner was superseded because of these two entries. The petitioner claims that, except these two adverse entries, there is nothing adverse in his record and he is entitled to be favourably considered for promotion to the higher scale of P. C. S. and for being placed in the select list of I. A. S.

A counter affidavit has been filed on behalf of the State Government, opposite party No. 1. It is stated that the representation of the petitioner have been duly considered and those parts of the confidential entries. which were not based on facts, have been expunged. It is denied that the reporting officer, the opposite party No. 2, was prejudiced against the petitioner and it is alleged that merely because the directions contained in the Government order dated 30101986 have not been complied with, it could not be inferred that there was any malice or prejudice. It is further alleged that the remarks, which have not been expunged, are based on facts and, as such, they cannot be directed to be expunged. In support of the allegation regarding financial irregularity, it is stated that according to the information given by the Vice Chairman, Allahabad Development Authority in his letter dated 1561991, the petitioner granted tender to M/s. G.D.L. Construction at 7.5 per cent higher rate after; three months for 30 M1GS at Sulem Sarai and consequently the Development Authority incurred financial loss of Rs. 58,250/ and it was for this reason that integrity certificate has been withheld. In connection with financial irregularities, it is also alleged that the facts have come to light in the audit report for the year 198788. In regard to promotion to the higher scale of P. C. S, it is stated that the petitioner''s case for promotion was considered but he was not found suitable for promotion and that besides these two entries, record often years was taken into consideration. As far as the I. A. S. select list and giving higher grade of P. C. S. is concerned, the report of the Selection Committee pertaining to the petitioner has been kept in sealed cover.

No counter affidavit has been filed by Shri D.K. Mittal, opposite party No. 2.

I have heard learned counsel for the petitioner and learned standing counsel at some length. The petitioner has challenged two confidential entries, one for the period 4111986 to 3131987 and the second for the period 141987 to 17887.Both these entries have been recorded by the opp. party No. 2, Shri D.K. Mittal while he was the ViceChairman of Allahabad Development Authority and the petitioner was working under him as Secretary of the Authority. Both these entries were finalised on 2261989. These entries have been reproduced in the earlier part of the judgment. On petitioner''s representation against both these entries, the State Government expunged almost the entire second entry, except to the extent it related to petitioner''s failure to make quarterly inspections, while in regard to the second entry, some parts which related to some factual data, were also expunged.

Learned counsel for the petitioner has challenged these entries on the grounds that Shri D. K. Mittal, opposite party No. 2 has recorded these entries against the petitioner due to malice, the entries are arbitrary, being based on incorrect facts and surmises, and that these have been recorded in violation of the mandatory Government Orders, contained in Government Order dated 30101986 (AnnexureA2) and Government Order dated 28121959 (Annexure A9).

There appears to be much force in the submission of the learned counsel for the petitioner that the entries suffer from ''legal'' malice. It is true that the burden of proving malafides is very high on the person who makes it (C. P. Royappa v. State of Tamil Nadu and another AIR 1974 SC 557). However, as noted by Hon''ble Supreme Court in Rajendra Roy v. Union of India and another AIR 1993 SC 1236 "it may not be always possible to establish malice in fact in a straightcut manner. In an appropriate case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances". Further in Baldev Raj Chaddha v. Union of India (1980) 4 SCC 321, Hon''ble Supreme Court has observed :

"Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained."

Legal malice will thus include non application of mind to relevant material or taking into consideration obsolete or irrelevant material.

In the present case, there are numerous facts and circumstances which lead to the inevitable inference that the entries recorded by Shri D.K. Mittal, opposite party No. 2, suffer from legal malafides. It may be noted that both these entries have been recorded by Shri D. K. Mittal in close proximity, that is, on 261187 and 2121987 and the entries relate to the consecutive periods of four months each in the year 198687 and 198788. Both these entries contain certain factual data and certain inferences. Practically speaking, both these entries may be considered to be one single entry. Both these entries contain palpably and admittedly incorrect facts. The second entry, the entry for the period 141987 to 1781987, contains the following incorrect factual statements which were expunged by the State Government :

The factual statements contained in the first entry i.e. entry for the period 4111986 to 3131987 which were also expunged by the State Government arefollows :

In regard to the remaining factual statements in the first entry, the petitioner has submitted that so far as the alleged changes and allotment in Sulem Sarai Govindpur and other colonies are concerned that was done with the approval of the Vice Chairman, not only by him, by other officers too. It has been so stated on pages 22, 23, and 24 of the memorial which is part of the pleadings of the petitioner. Nothing has been placed before the Court to indicate that this assertion is incorrect. It is true that Courts will not substitute their judgment for that of the Administrator but

Erratum : Please note that on pages nos. 41 to 44 the name of parties has been incorrectly stated as Suresh Chandra Gupta v. State of U.P. instead of Thakur Vimlesh Kumar Singh v. DIOS which may Kindly be corrected. The error is regretted. the principle that they are not absolved from the minimal review is well settled in administrative law and founded on Constitutional obligations (Baldev Raj Chaddha v. Union of India and others (1980) 4 SCC 321). Accordingly, when the question is as to whether any remark has been made without application of mind and some factual statement is made by the petitioner which is not disputed by the other side, there may be no difficulty in considering the effect of that factual statement. Since there is nothing to indicate that factual statement made by the petitioner that the changes were made only with the consent of the Vice Chairman is incorrect it has to be accepted and it must be held that this statement in the confidential report was incorrect. This is also the position in regard to the factual statement in the first confidential report to the effect that Gopesh Khanna was given permission to construct a showroom against rules. In this regard, the petitioner has stated that this was done, before Shri D.K. Mittal took over, with the approval of the then Vice Chairman. This is so stated in para 27 of the writ petition and at page 24 of the memorial (Annexure6). These facts have also not been denied.

It would thus appear that all the factual statements, except in regard to quarterly inspection, which were made by Shri D.K. Mittal, opposite party No. 2, and on the basis of which he has made other general remarks were, in the most part, found to be wrong by the State Govt. and there is no objective factual premises for such surviving remarks. Therefore, the obvious inference has to be that these factual statements and inference were made without proper application of mind.

In this connection, the learned counsel for petitioner referred to the decision of Hon''ble Supreme Court in B.R. Chaddha (supra) and contended that most of the factual statements made by the opposite party No. 2 in the two confidential reports related to the period before he took over and, in absence of any counter affidavit of the opposite party No. 2, it is not understandable as to why he delved into the office files to highlight those alleged facts which were not even correct. In the case of B.R. Chaddha (supra), Hon''ble Supreme Court has observed that "any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon cannot be sustained."

Learned counsel for the petitioner also drew my attention to the categorisation made by the opposite party No. 2 in the two confidential reports. He has categorised the petitioner as (base, low), an expression much more reprehensible than the lowest categorisation permitted under the Government order. Learned counsel for the petitioner has submitted and it would appear from the Government order dated 301086 (Annexure 2) that the only categories which a Reporting Officer has to indicate, by way of grading of the officers, are as follows :

(Outstanding)

(Very good)

(Good)

(Fair)

(Bad)

There is no such categorisation as has been mentioned by the opposite party No. 2. This also clearly indicates arbitrary nature of the entry due to non application of mind.

Learned counsel for the petitioner is also right in his submission that it is quite strange that the opposite party No. 2 could not find anything good or commendable either in work or conduct in these two entries which relate to only part of the two years while the entries for the major part of these two years are very good and the entries, both before and after these two adverse entries, are good, very good or even outstanding and that this fact must also lead to the inference that the entries given by the opposite party No. 2 suffer from legal malafides. On my direction, the learned Standing Counsel produced the character roll of the petitioner. A perusal of the same indicates that for the earlier part of the year, that is, for almost eight months of the year, 198687, the petitioner has earned very good entry. Similarly, entry for the remaining part of about eight months of the year, 198788 is also very good. The petitioner had been working on the same post of Secretary, Allahabad Development Authority since 2041985, i.e. since before the date (4111985) when the opposite party No. 2 took over as Vice Chairman. The confidential entry earned by him for the earlier period on the same post, as revealed from the record placed before me by the learned Standing Counsel, is very good. The record also indicates that there has not been any adverse entry against the petitioner, both before and after these two adverse entries. For most of the years, he has earned good, very good or even outstanding entries. In the years immediately preceding (198586) and succeeding (198788) the years, for part of which impugned entries have been recorded, the petitioner has earned ''outstanding'' entries. It is difficult to believe that work and conduct of the petitioner will deteriorate so drastically during this short period of four months in each of the two years, as described in the impugned confidential reports. Neither efficiency nor personality characteristics can deteriorate so markedly in and only for such short span of time. The inevitable inference will be that the remarks in the impugned adverse reports are not based on objective assessment or on due application of mind.

It cannot be too much emphasized that there should be objectivity in the assessment of performance of an officer. Any remark which deviates from objectivity is quite patently unfair and it would smack of ''legal'' if not personal mala fides. If we compare these two adverse reports with petitioner''s other confidential reports both before and after these two adverse reports, and consider the other facts noted above the submission of the learned counsel for the petitioner that these two adverse reports are, legally speaking, malice ridden, cannot be said to be devoid of force.

Action taken by the Reviewing or the Accepting Authorities cannot also be said to be free from legal malafide. They appear to have endorsed the views of the Reporting Officer mechanically. One glaring example for such an inference is the fact that they did not even care to notice that "Nikrisht" is not a permissible classification under the G.O. dated 30101986 (Annexure No. 2). The fact that almost entire adverse entry of the period 141987 to 1781987 and substantial part of the entry for the period 4111986 to 3131987 had to be expunged, on the representation of the petitioner, is also indicative of non application of mind by the Reviewing and Accepting authorities.

The representation and memorial of the petitioner against the first entry for the period 4111986 to 3131987 would also appear to have been disposed of without due application of mind. A perusal of the two entries i.e. the entries for the period 411986 to 3131987 and for the period 141987 to 1781987 would indicate that, besides some different factual statements, the remaining part of the two entries was substantially similar. In both the entries, the general remarks related to lack of effective control on the office, lack of interest in improving the office working, failure to obey the orders of the superiors, failure to dispose of the cases relating to the office of the Allahabad Development Authority, lack of labour and carelessness in performance of duties. So far as the factual statements in these two reports are concerned, they have been found to be incorrect. Therefore, it is not understandable as to why the remaining part of the first report was also not expunged when similar remarks in the second report of the nest four months were expunged by the State Government. The inference made or expressed by way of general remarks were based on the factual statements. The fact that the State Government found the general remarks contained in the report for the period dated 141987 to 1781987 to be not justified, the necessary corollary should have been to expunge the similar remarks of the just preceding period also. Indeed it is difficult to understand how the remarks relating to control over office, lack of labour, carelessness etc., given in the entry for the period 4111986 to 3131987 could have been allowed to stand by the Government when they found similar remarks in the just succeeding period 141987 to 1781987, to be unjustified. No justification has been shown in the counter affidavit or otherwise for maintaining the remaining similar remarks in the first confidential report for the period 4111986 to 3131987. The failure to expunge the remaining part of the remarks, except in regard to the quarterly inspection, in the report for the period 4111986 to 3131987 must accordingly be found to be bad for non application of mind.

Since the factual statements contained in the two adverse entries have been found to be incorrect, the remarks relating to withholding of integrity certificate cannot also survive. The remark regarding integrity contained in the second adverse report i.e. report for the period 141987 to 1781987 has been expunged by the State Government. For the fame reason, the State Government should have expunged the remark regarding integrity in the report for the period 4111986 to 3131987.

In this connection, it may also be observed that in the confidential report for the period 4111986 to 3131987, it is stated in regard to the integrity that the same is not certified "because of the above mentioned financial and administrative irregularities". Since it has been found, as a fact, that the statement regarding financial or administrative irregularities is incorrect, there could be no question of withholding integrity certificate.

The remark regarding withholding of integrity certificate must also be found to be unsustainable for the reason that it has been given in violation of the directions contained in D.O. 1895/1IB691948 dated 28121959 (Annexure No. 9) from the Chief Secretary to the U P. Government to the Heads of Departments. Para 2 of this D.O. contains the following directions :

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(2) All certifying officers should give the most careful attention to the granting or withholding of these certificates and treat it as a serious and important matter. No certificates should be given unless the certifying officer is satisfied without reservation about the integrity of the officer concerned. To enable certifying officers to discharge their responsibilities the following suggestions are made :

(a) In respect of each subordinate officer of gazetted rank and belonging to the upper subordinate service in whose case an integrity certificate is to be recorded, the certifying officer should keep a secret record in which he should note down from time to time any facts or circumstances which come to his knowledge concerning the integrity of the subordinate.

(b) on each such occasion the certifying officer should exercise his judgment as to whether the facts or circumstances which have come to his notice amount to either (i) a definite fact susceptible of formal proof, or

(ii) a mere vague allegation not susceptible of formal proof but still creating doubt or suspicion.

In the former case, he should make a proper enquiry and if the officer is found at fault regular departmental action can be taken. In the latter case, the subordinate concerned should be faced with allegation or circumstances which have come to the notice of the reporting officer.

(c) If the subordinate clears up his position the matter need not be pursued further and a note should be made in the record to the effect that the subordinate concerned was able to clear his position. If on the other hand his explanation is not considered satisfactory and yet the point is not one on which the certifying officer think that proof would be available he should utilise this as a fact or circumstance which came to his knowledge and the effect of which would create doubt about the integrity of the officer concerned which would justify him in withholding the integrity certificate."

It would appear from this D.O. that, where there are facts susceptible of formal proof and on proper enquiry, an officer is found at fault, departmental action can be taken and in case of vague allegations not susceptible to formal proof but still creating doubt or suspicion the subordinate concerned should be faced with allegation or circumstances which have come to the notice of Reporting Officer. It will further appear that it is only when on such confrontation, the concerned subordinate officer is not able to clear his position, a remark withholding the integrity certificate may be justified. If he clears his position, a note will be made that he has done so.

In the present case, the petitioner has made specific allegation based on these instructions. It has not been said in the counter affidavit that there were any facts susceptible of formal proof indicating lack of integrity or, on any enquiry, petitioner''s integrity was found doubtful. It is also not stated in the counter affidavit, in regard to the first entry, that any recommendation was made for holding a formal departmental enquiry in this regard. Therefore, the case of the opposite parties could only be that, there were some vague allegations not susceptible of formal proof. However, it is not suggested by the opposite parties that the petitioner was confronted with those allegations in accordance with the requirements of the D.O. dated December 28, 1959 or his explanation was obtained. In absence of such action, the opposite party No. 2 was not justified in withholding integrity certificate.

Withholding of integrity certificate is a serious matter. It not only affects the reputation of the person concerned but may, in some cases, be sufficient for penal or administrative action against him. It is for this reason that the Government considered it necessary to provide some specific guidelines for withholding integrity certificate. Therefore, it is necessary for the Reporting Officer to comply with these instructions strictly and satisfy himself convincingly. Accordingly, an entry must be held to be vitiated if it is given in violation of these instructions.

In the present case, these instructions have not been followed. As such, this remark regarding integrity cannot be sustained for this reason alto.

Learned Standing Counsel relied upon Ferendez v. State of Mysore AIR (sic) SC 1753 in support of his submission that such instructions are not binding or enforceable. On the other hand, the learned counsel for the petitioner relied upon Union of India v. K.P. Joseph and others 1973(1) SLR 910, State of Haryana v. Shri P.C. Wadhwa and another AIR 1987 SC 1201, B.M.S. Chopra v. State of Punjab 1987(2) SCC 188 M.M. Voland v. State of Gujarat 1978 (1) SLR 489 and Satrudhan Sahani and others v. State of Bihar and others AIR 1991 Patna 211 in support of his contention that such instructions are binding and enforceable. These and some other decisions may be considered.

In Sant Ram Sharma v. State of Rajasthan 2967 SC 1910, the Supreme Court repelled the contention that, in absence of Rules, no administrative instructions can be issued and observed :

"It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade of officers to selection grade posts. But that does not infer that till statutory rules are framed in this behalf, the Government cannot issue administrative instructions regarding the principle to be followed in promotion of the officers concerned to selection grade posts.

In Union of India and others v. M/s. IndoAfghan Agencies Limited 1968 (2) SCR 366 at page 377 the Supreme Court, in considering the nature of the Import Trade Policy, observed :

"Granting that it is executive in character, this Court has held that Courts have power in appropriate cases to compel performance of the obligation imposed by the Schemes upon the departmental authorities."

The Supreme Court relied upon the aforesaid two decisions in Union of India v. K.P. Joseph and others 1973(1) SLR 910 and observed as follows :

"Generally speaking an administrative order confers no justiciable right, but this rule like any other general rules is subject to exceptions. This Court has held in Sant Ram Sharma v State of Rajasthan (1968) 1 SLR 111 that although the Government cannot supersede statutory rules by administrative instructions, yet if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructionsnot inconsistent with the rules already framed and these instructions will govern the conditions of service."

The Supreme Court further observed :

"To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area".

In Brij Mohan Singh Chopra v. State of Punjab (1987) 2 SCC 188, it was contended that the executive instructions, relating to guidelines for premature retirement, are not binding. The Supreme Court rejected the contention and observed :

"In the absence of any details by which the question of public interest could be determined in the rules it was open to the State Government to issue executive instructions for the guidance of the appropriate authority to exercise the power of premature retirement and the instructions so issued as contained in the aforesaid government orders have binding character."

In State of Haryana v. Shri P.C. Wadhwa and another AIR 1987 SC 1201, it was contended that the Rules 5, 6, 6A and 7 contained in All India Services (Confidential Rolls) Rules, 1970 regarding time frame for communication of entries etc. are merely directory and not mandatory and, as such, noncompliance will not be material. The Supreme Court observed as follows :

"It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance."

In M.M. Voland v. State of Gujarat 1978(1) SLR 489, the Gujarat. High Court relied upon earlier decision of a Division Bench of that Court and held that, where instructions regarding recording of adverse entry, are not complied with the entry recorded should be ignored.

In Satrudhan Sahani and others v. State of Bihar and others AIR 1991 Patna 211, the full Bench of the Patna High Court observed as follows :

".........even executive instructions issued by the State Government are expected to be followed or obeyed."

The full Bench further observed as follows :

"On the other hand, so far as executive instruction are concerned, they are also meant to be followed, but if while complying with such instructions, in relation to grant of contracts, licence, rights in minerals and Jalkars, there has been some deviation unless such deviation can be held to be hit by Art, 14 of the Constitution, i.e. arbitrary, irrational or mala fide, the grant or the settlement ipso facto shall not become invalid. If a grievance is made before a Court of law in respect of contravention of such executive instructions or circulars, the Court has to test the alleged contravention on the touch1 tone of Article 14 of the Constitution. If the actions of the authorities are upheld in the light of Article 14 of the constitution, then courts have to condone deviations made, if any. It is well settled that all provisions of even an Act or statutory rule are not mandatory in nature, unless they form the integral part thereof."

In Stale of Gujarat v. A.C. Bhargava 1987(5) SLR (sic) Hon''ble Supreme Court considered the effect of administrative instructions relating to confirmation. Rule 3(1) of I.P.S (Provision) Rules, 1954 provided two years'' probation. However, by administrative instructions it was directed that, except for exceptional reasons, the period of probation should not be extended by more than one year and total period of probation shall not be double the period provided in the rules. The Supreme Court held that these administrative instructions are binding and the petitioner must be deemed confirmed at the end of four years period.

In J.R. Raghupaty v. State of Andhra Pradesh AIR 1988 SC 1681, the Supreme Court endorsed the following legal position contained in Durgadas Basu''s Administrative Law, second edition at page 145 :

"Even though a nonstatutory rule, byelaws or instructions may be changed by the authority who made it without any formality and it cannot ordinarily be enforced through a Court of Law, the party aggrieved by its non enforcement may, nevertheless get relief under Article 226 of the Constitution where non observance of the nonstatutory rule or practice would result in arbitrariness or absence of fair play or discriminationparticularly when the authority making such nonstatutory rule or the like comes within the definition of ''State'' under Article 12."

It would thus appear that there could be administrative instructions which can be enforced under Article 226 of the Constitution. Such administrative instructions would be the instructions which confer rights and impose duties. If such instructions are not inconsistent with any rules they would be binding and can be enforced. An example of such an administrative instruction is where guidelines are provided for the appropriate authorities for exercise of power of premature retirement (See B. M. Singh Chopra''s case (1987)2 SCC 188). Another example may be where it is provided by the executive instructions that period of probation will not be extended beyond certain limits (see State of Gujarat v. A.C. BhargavaSupra). There may be many other such examples. In such cases, the administrative instructions will be binding and if these are violated the order will be vitiated and could be challenged in the Court.

There could also be administrative instructions which may not confer any vested rights, as such, but which are in the nature of guidelines only for the concerned authorities to exercise a particular power. Such instructions may not be justiciable merely because there has been some deviation in following them. However, even such instructions have to be ''substantially'' complied with and only difference is that merely some deviation in following such instructions will not adversely affect the order passed Sophocles said, ''nobody has a more sacred obligation to obey the law than those who make it.'' The same should be true in regard to the administrative instructions which are issued by the Government to its officers providing guidelines to be followed in taking adverse action against subordinate officers. Action taken in violation of these instructions may be challenged if it has resulted in arbitrariness, discrimination or absence of fair play within the meaning of Articles 14 or 16 of the Constitution. The very object of issuing such instructions is to avoid arbitrariness. Therefore, if grievance is made before the Court of Law for contravention of such instructions, the Court will have to test the alleged contravention on the touchstone of Articles 14 and 16 of the Constitution. If on such a consideration it is found that deviation from such instructions or violation thereof is not substantial or does not result in any arbitrariness, discrimination or absence of fair play, then the Courts may have to condone the deviation made. In other words, even if such instructions are held to be directory and not mandatory, the Govt. or any other authority are bound to act in accordance with such instruction substantially and the only difference would be that merely a minor deviation, which does not result in arbitrariness or discrimination within the meaning of Article 14 and 16 of the Constitution, will not affect the action taken adversely.

Nothing to the contrary would appear to have been laid down in the case of G. J. Fernandez v. State of Mysore 1967 SC 1753. It was a case relating to the enforceability of the instructions contained in the departmental code relating to tenders. It was contended before the Hon''ble Supreme Court that such instructions would be deemed to be rules under Article 162 of the Constitution and shall have binding force. The Supreme Court rejected the contention and held that the executive orders issued under Article 162 of the Constitution are mere administrative instructions and there is no power under that Article to make rules. In that context, the Supreme Court particularly referred to Article 309 of the Constitution, which confers power on the Governor of a State to make rules regulating the recruitment and conditions of service and pointed out that no such power is conferred under Article 162. It was further observed that mere disobedience of any instruction under Article 162 did not confer any right on the member of the public.

It has been noted above that the opposite party No. 2 withheld the integrity certificate without complying with the directions contained in the order dated 28121959 (Annexure9). It has also been noted, in the earlier part of the judgment, that withholding of integrity certificate is a serious matter and therefore, the State Government considered it expedient to issue guidelines in order to avoid arbitrariness. The purpose behind these instructions is obviously to ensure that such a drastic action as withholding of integrity certificate is not taken without substantial convincing reason. A already indicated, no counter affidavit has been filed by the opposite party No. 2 and there is nothing to indicate that the opposite party No. 2 made any attempt whatsoever to substantially comply with these directions. The result of this noncompliance is that integrity certificate has been withheld on facts which were not correct and the petitioner has been deprived of the opportunity to explain his position. If such an opportunity were given as was required under these instructions, the petitioner would have been able to clarify his position and convince the opposite party No. 2 that the facts on the basis of which his integrity is proposed to be withheld, were not correct. Accordingly, it must be held on the basis of legal position discussed above, that the order withholding the integrity certificate is arbitrary and indicatey absence of fair play and due application of mind. Therefore, as already noted above, remarks relating to withholding of integrity certificate must be found to be untenable and has to be quashed.

In the counter affidavit, filed on behalf of the State Government, it is stated that integrity certificate was withheld, among other reasons, on the basis of information given by the Vice Chairman, Allahabad Development Authority in his letter dated 1561991. The information suggested that tender of M/s. G.D.L. construction was given at higher rate for 30 MIG houses in Gulem Sarai and, consequently, the Development Authority incurred financial loss of Rs. 58,250/. The adverse entry in which financial irregularities are alleged is quite detailed one. No such fact has been mentioned in the adverse confidential report as is now being alleged in the counter affidavit. The Audit report for the period 198788, which is also referred to in the counter affidavit, was obviously not existing when the opposite party No. 2 recorded the confidential entry relating to financial irregularities and withheld his integrity certificate. In any case, their is nothing to indicate that these facts were brought to the notice of the petitioner before withholding the integrity certificate. Therefore, the additional facts which have now been alleged cannot be proper or sufficient ground for withholding the integrity certificate in the confidential report for the period 481986 to 3131987. Accordingly, the inference that order regarding withholding of integrity certificate is quite arbitrary and must be quashed for that reason, must stand.

The remaining entry for the said period 4111986 to 3131987, except in so far as it relates to the quarterly inspections, must also be found to be quite arbitrary. It has already been indicated above and it may bear repetition that the facts mentioned in the said entry were incorrect and most of the facts and incidents, narrated in the said entry, related to the period before opposite party No. 2 took over as the Vice Chairman. In pursuance of the representation against the entry for the next subsequent period 1487 to 1781987, which was quite similar to the entry for the period 4111986 to 313.1987, the remarks were quashed by the State Government. The general remarks in these entries were made on the factual premises which have been found to be incorrect by the State Government and by this Court. In absence of any counter affidavit by the opposite party No. 2, there is no option but to take the view that there was sufficient reason for the opposite party No. 2 to delve into the office files to find out defects in the work and conduct of the petitioner and to record adverse entries on the basis of facts which were not true. Since the personal malafides are not alleged against the opposite party No. 2, there may be no question of holding the confidential entry to be bad on account of personal malafides. However, as already noted above, the reasons for holding legal malafides are in abundance and remain unexplained. The facts cumulatively lead to the only inference that this adverse confidential entry has been recorded by the opposite party No. 2 without due application of mind and, as such, arbitrary and must be quashed for this reason also except in so far as it relates to the quarterly inspection.

A So far as the entries relating to quarterly inspection are concerned, they are, no doubt, based on facts. Even so, it is difficult to sustain them when the rest of the adverse remarks are to be expunged on the ground of legal malafide. These remarks seem to be clearly influenced by legal malafide. It is possible that, if the opposite party No. 2 were not carried away by his impressions based on wrong facts, he may not have made these remarks. In this connection, it is important to note that both his predecessor and successor, who recorded the remarks for the remaining period of eight months in the two years 198687 and 198788, commended petitioner''s work in all aspects and, on overall assessment of the work, did not consider it appropriate to give any adverse remark, regarding quarterly inspection.

This remark regarding quarterly inspection in the confidential entry for the period 141987 to 1781987 must also be found to be unsustainable on the ground of noncommunication of similar entry for the earlier period within reasonable time and before recording subsequent entry.

The purpose of communication of adverse entries is to give an opportunity to the employee to improve his work and conduct or to explain his position. Since the adverse entry for the period 4111986 to 3131987 was not communicated before the subsequent adverse entry for the period 141987 to 1781987 was recorded, it is quite obvious that the petitioner did not get any opportunity to make quarterly inspection for the next quarter before the date the subsequent adverse entry, which now survives, was recorded. It is quite possible that, if the adverse entry for the period 4111986 to 3131987 had been communicated to the petitioner in time, he would have made quarterly inspection of the subsequent period and there may have been no occasion to record the adverse remark regarding quarterly inspection which still remains in the subsequent entry after the rest being expunged by the State Government. The petitioner cannot be made to suffer for the negligence, carelessness and wanton violation of the directions contained in the Government order dated 30101986. Therefore, even if it is true that the remark regarding quarterly inspection which now remains in the entry for the period 141987 to 1781987 is based on fact, which is not disputed by the petitioner yet, for the reason stated above, this remark also cannot be allowed to remain in the confidential entry for the said period.

Learned counsel for the petitioner has, indeed, challenged the two adverse entries for the periods 4111986 to 3131987 and 141987 to 1781987 on the ground that they have not been recorded or communicated to the petitioner within the time mentioned in the G.O. dated 30101986 (Annexure2). It is submitted by the learned counsel that, according to the instructions issued in this Government order, the entries should be completed by 15th June, but the Chief Secretary, who was the Accepting Authority has accepted these entries with much delay on 2261989. It is further submitted by the learned counsel that, these entries were communicated to the petitioner after about two years of their being recorded. He pointed out that, according to this G. O. the representation filed against these entries has to be forwarded to the Reporting Officer within one week and the Reporting Officer was required to submit his comments within one month and further that, if no comments are received from the Reporting Officer, the authority considering the representation should decide it on merits without waiting for the comments but the representation against the second entry for the period 141987 to 1781987 was disposed of after much delay on 18th May, 1992 and the representation against the entry for the period 4111986 to 3131987 was disposed of with still more delay on 1571992. It is submitted by the learned counsel that in the meanwhile, the petitioner was superseded in the selection for higher scale of PCS in the selection held in September and October, 1989, selection to the I.A.S. cadre held in February, 1990, selection for higher scale in P.C.S. held in May, 1990, selection for IAS held on 2161991, the selection held for higher scale for P.C.S. in September/October, 1991 and again for the selection for I.A.S. held in March, 26/27, 1992. Therefore, according to the learned counsel, delay in deciding the representation has resulted in grave injustice to the petitioner and that being so, the confidential entries are liable to be quashed for this reason as well.

In Baidyanath Mahapatra v. State of Orissa and another 1989(4) SCC 664, The Supreme Court has observed :

''''The purpose of communicating adverse entries to the government servant is to inform him 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 representation. If the adverse remarks awarded to a government Servant are communicated to him after several years the object of communicating entries is defeated. 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 opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustified."

The Supreme Court further observed :

"Belated communication of the entries resulted in denial of reasonable opportunity to the appellant to improve his performance. Further since adverse remarks for several years were communicated with inordinate delay it was impossible for the appellant to make an effective representation against the same."

In Gurdial Singh Fijji v. State of Punjab and others AIR 1979 SC 1622 the Supreme Court has observed as follows ;

The principle is well settled that in accordance with the rules of natural justice, an adverse report in a 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 one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the nonissuance of the integrity certificate to the appellant."

In Brij Mohan Singh Chopra v. State of Punjab 1987(2) SCC 188, the Hon''ble Supreme Court referred to its earlier decisions in Gurdial Singh Fijji v. State of Punjab (supra) and Amar Kant Choudhary v. State of Bihar (supra) and observed as follows :

"There is no doubt that whenever an adverse entry is awarded to a government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is a valuable right to a government employee and if the representation is not considered, it is bound to affect him in his service career, as in government service grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records."

In State of Haryana v. P.C. Wadha (Supra), Hon''ble Supreme Court considered the Rule 5, 6, 6A and 7 of All India Services (Confidential Rolls) Rules, 1970 regarding recording and communication of adverse entries and observed as follow :

"The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent, the Inspectorgeneral of Police, Haryana, after twenty seven months, It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provision need not be complied with even substantially, such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including she communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory without serving any purpose consistent with the spirit and objectives of these Rules."

Thus the need for communicating the adverse entry and deciding the representation expeditiously, cannot be overemphasised. As noted above, the purpose of communicating adverse entry to the Government servant is to give him an opportunity to explain the facts taken into consideration against him for recording adverse entry and also to enable him to make amends or affect improvement in his work and conduct. If the adverse remarks are not communicated expeditiously and the representation against the same is decided with unreasonable delay, the object of communicating the adverse entries or permitting the Government servant to make a representation is defeated. The right of representation and of its early disposal is not an empty formality. The administrative instructions in this regard contained in the aforesaid Government orders, have to be substantially complied with to ensure that the opportunity provided is real. If unreasonable delay in disposal of the representation results in supersession of the officer concerned or deprivation to him of his right to get increment or higher scale etc. such action against him will be arbitrary within the meaning of Article 14 of the Constitution and cannot be justified. In order that this valuable right is meaningfully exercised, it is imperative that not only the representation must be disposed of with utmost speed, it should be clearly ensured that till the representation is so disposed of, the adverse entries are not read against such officer. If the disposal of the representation is delayed and the adverse entries are considered for depriving the concerned officer''s promotion, higher scale etc. these orders cannot be sustained.

In the present case, it would appear that the confidential entries were recorded on 26111987 and 2121987, they were endorsed by the Reviewing Authority on 8121987 and sent to the Accepting Authority, namely, the Chief Secretary but the Chief Secretary accepted them after almost 1 � year on 2661989; thereafter another 1 � months were taken in communicating these entries to the petitioner with D.O. dated 9th August, 1989. The petitioner made two separate representations on 6111989 and 17111989 but these representations were again decided with an inordinate delay. The decision regarding the disposal of representation in regarding to the entry for the period 141987 to 1781987 was communicated to the petitioner vide D. O. dated 18th May, 1992 i.e. after almost 30 months. The order on the representation in regard to the entry for the period 4111986 to 3131987 is alleged to have been communicated to the petitioner vide D. O. dated 2781991 filed with supplementary affidavit dated 1571992 but the petitioner has stated that he did not get this order until it was filed alongwith the supplementary affidavit. There is nothing to indicate how this was served on the petitioner. In any case, even it was decided on 2781991 this decision was obviously taken after almost 21 months. In either case, the delay cannot be said to be justified. The only explanation that was given during arguments was that the comments of the Reporting Officer were delayed. Even if the comments of the Reporting Officer were not forthcoming, the Government order dated 30101986 (Acnexure2) directed that the concerned authority shall not wait for these comments beyond six weeks. Therefore, there was no justification for the concerned authority for not deciding the representation soon after the period of six weeks. It is not disputed that, during this period, a number of selections were held for promotion to the higher scale of P.C.S., and for being placed in the select list of I.A.S., but the petitioner was not selected.

Learned Standing Counsel referred to the statement contained in the counter affidavit to the effect that the petitioner was not superseded merely on the ground of these two adverse entries but on the consideration of the overall record of past ten years. Even the averments contained in the counter affidavit and the submissions made by the Learned Standing Counsel do not deny the fact that these two adverse entries were considered by the concerned authorities. As the law is, there was no justification for the concerned authorities to take into consideration these two adverse entries in superseding the petitioner or not placing him in select list of I.A.S. until his representations were disposed of. Further, it would appear that in the claim petition filed by the petitioner before the Public Services Tribunal, an interim direction was given on 2041991 that these entries shall not be taken into consideration for the purpose of promotion of the petitioner to the higher scale of P.C.S. It is surprising that inspite of this direction of the Public Service Tribunal, these entries should have still been taken into consideration for superseding the petitioner for higher scale in P.C.S. in the selection held in September/October, 1991 and for being placed in the select list of I.A.S. for which selection was held on March 26/27, 1992.

It would thus appear that taking these entries into consideration in the selections held in September/October. 1991, May 1990, September/October, 1991 for higher scale of P.C.S. and in the selections held for being placed in the select list of I.A.S. in February, 1990, 2621991 and March 26/27, 1992 was wholly unjustified being illegal and also violative of the directions given by the Public Services Tribunal. That being so, the decisions taken in this regard against the petitioner in all the aforesaid selections must be found to be unsustainable.

The learned counsel for the petitioner is also right in his submission that even if these remarks were not expunged, these could have no relevance for taking any adverse decisions against the petitioner. In this connection, it is submitted that, after these remarks were recorded in the character roll, the petitioner has been confirmed in the selection grade with effect from 2041989, and, as such, these adverse remark cannot be read against the petitioner for depriving him of further promotion etc. It is the settled law that when a Government servant is promoted or permitted higher scale on the basis of merit and selection, the earlier adverse entries, if any, contained in the service record loose their significance and they remain on record as part of history ; it would be unjust to curtail the service career of the Government servant on the basis of those entries in absence of any significant failure in his performance after his promotion (See Baidyanath Mahapatra v. State of Orissa and another 1989 (4) SCC 644). The confidential record of the petitioner indicates that he had consistently got either outstanding or very good entries after his confirmation in the selection grade. Therefore, there could be no question of considering these remarks for denying promotion etc. to the petitioner on their basis. Accordingly, even if the entries relating to quarterly inspection were not expunged, they can be said to be of no consequence.

In regard to the decision of the Tribunal, which is being challenged in this writ petition, the learned counsel for the petitioner submitted that the Tribunal has passed a very cryptic order without application of mind. According to the learned counsel, the Public Services Tribunal should have considered the allegations of the petitioner and given findings on merit. There is much force in this submission. It appears from the perusal of the judgment of the Public Services Tribunal (Annexure11 to the petition) that the learned Administrative Member, who decided the case, did not apply his mind to the points in issue and took a shortcut by directing the opposite parties to decide the pending representation/memorial of the petitioner against the impugned "adverse entries" (Annexure No. 1 to the petition) even though the representation against the adverse entry for the period 4111986 to 3131987 had already been disposed of and this fact was in the knowledge of the Public Services Tribunal (vide para 9 of the judgment). When the representation against the adverse entry for the period 4111986 to 3131987 had already been decided, it was necessary for the Tribunal to have considered the allegations of the petitioner in regard to this entry on merit instead of directing the opposite parties to decide the representation.

It appears that the Public Services Tribunal did not go into the merits of the allegations of the petitioner in respect of this entry on a wholly unwarranted presumption that, if certain portions of the adverse entry have been expunged by the State Government, it must be deemed that the opposite parties have themselves fairly applied their minds to the grievance of the petitioner and have conceded to the extent possible. The petitioner had specifically alleged that the remaining factual statements in this adverse entry were incorrect and, as such, the inference drawn in general remarks were also unwarranted, a claim that has been found to be correct in the earlier part of this judgment. The Public Services Tribunal should have gone into the question.

It was also alleged by the petitioner before the Public Services Tribunal that the opposite party No. 2 recorded this adverse entry due to malice. The Tribunal has brushed aside this allegation of prejudice and malafide with the observations that the opposite party No. 2 had made certain factual statements to corroborate the general remarks, the adverse entry given by the opposite party No. 2 was endorsed by the Reviewing and Accepting authorities and "it cannot be logically construed that these two senior I.A.S. Officers were also prejudiced against the petitioner". Petitioner''s claim that such a prejudice or malice must be inferred as, except these two entries for a short period of about four months in each year, he had excellent/outstanding confidential record, was not considered with the observations that "it has not been made clear by him as to how he came to know the contents of the character roll, which is a classified/secret document". I am afraid, the Public Service Tribunal has completely misdirected itself in its reasoning and the inference. It is difficult to accept any of these grounds taken by the learned Administrative Member of the Public Services Tribunal in his judgment.

Learned Administrative Member of the Public Services Tribunal would appear to be unnecessarily obsessed with the fact that the entries were given by an I.A.S. Officer and were endorsed and accepted by other senior I.A.S. Officers. He seems to think that no fault could be found if a decision is taken by senior I.A.S. Officers. It is difficult to subscribe to this view. Even though, the Officers of the I.A.S. maybe accepted to be brilliant and capable Officers, by and large, it cannot be presumed that they are infallible or cannot commit even an honest mistake. No Officer, however high he may be and to whatever service he may belong, could be presumed to be infallible. Even the administrative orders of the Chief Justice of High Court or for that matter of the Governor, are challenged and are sometimes quashed. The fallacy of such an assumption in glaringly apparent in the present case itself. As has been found above, most of the acts mentioned by the opposite party No. 2 the two confidential entries were found to be incorrect by the State Government itself on the representations of the petitioner, which must have been dealt with by senior I.A.S. Officers. The State Government itself expunged the entire adverse remark for the period 141987 to 1781987 except in regard to the quarterly inspection, and also quashed the substantial part of factual statements made in the entry for the period 4111986 to 3131987. It has also been found above that the surviving remarks for the period 4111987 to 3131987 are also based on incorrect statements and have to be quashed. If it were to be accepted that merely because senior I.A.S. Officers dealt with the matter no fault could be found with it, then the State Government could not have expunged these remarks or the substantial parts thereof. It has also been noted that the two entries were endorsed by the Reviewing or the Accepting authority without due application of mind. Therefore, it was not proper for the learned Administrative Member of the Public Services Tribunal to have brushed aside the contentions of the petitioner on the premises that no fault could be found with the entry because that was endorsed by the Reviewing and Accepting Authorities who were senior I.A.S. Officers.

It was, perhaps, on account of this obsessive feeling of the learned Administrative Member of the Tribunal that the senior I.A.S. Officers cannot commit even an honest mistake that he refused to consider the other allegations of the petitioner.

The petitioner had specifically alleged that the facts mentioned in the two adverse reports were incorrect but the Public Services Tribunal has merely observed that the remarks of the opposite party No. 2 were based on certain specific instances. When some facts were alleged by the petitioner and were not disputed by the opposite party No. 2 by filing a counter affidavit and further when it had come to the notice of the Public Services Tribunal that certain remarks, based on alleged factual statements, were expunged by the State Government on the representation of the petitioner, the Tribunal should have proceeded to consider the allegation of the petitioner in this regard on merit. If the Public Services Tribunal had done so, it would have certainly come to the conclusion arrived at by this Court in the earlier part of the judgment. Therefore, it was not right for the Public Services Tribunal to brush aside this plea of the petitioner merely with the observation that the opposite party No. 1 had given certain specific instances.

The Public Services Tribunal committed another substantial error by brushing aside the plea of the petitioner to the effect that except these two adverse entries, his confidential record is excellent/outstanding and, as such, the entries for these two limited periods could not be said to be bonafide. The Public Services Tribunal brushed aside the plea of the petitioner with wholly irrelevant observations that the confidential entries or character roll is a classified/secret document and it has not been made clear by the petitioner as to how he came to know about them. In fact, there is hardly anything confidential about the confidential remarks. The confidentiality of the entries may, at best, be limited to the time until they are finalised by the Accepting Authority. Thereafter, the confidential entry cannot be considered to be confidential at all. It must be considered to be the right of the employee to know how his work has been assessed. There are already Government orders directing that adverse entry in a confidential record should be communicated. The Government order dated 30101986 (Supra) also directs that if there are favourable remarks along with the adverse remarks, the entire entry should be communicated. It appears that adverse entry is necessarily communicated so that the concerned employee may file a representation against it or try to improve his work and conduct. Though there is no such necessity in respect of favourable remarks, nevertheless, favourable remarks cannot be said to be confidential in the sense that they should not be made known to the employee concerned if he wants to know the same. In regard to All India Services, the rule 8 of the All India Services (Confidential Rolls) Rules, 1970, interalia, provides that, along with adverse remarks "substance of the entire confidential report" shall be communicated." Therefore, the observation of the Public Services Tribunal that such confidential remarks or character roll is classified/secret document, must be found to be unsustainable and it must be held unequivocally that the confidential entries whether good or bad are not classified/secret and even though adverse remarks only are to be necessarily communicated, the concerned authority must also make the favourable remark available to the concerned employee. In any case, this should be done, if he makes a request for the same. It is expected that the Government will consider the desirability of issuing appropriate instructions in this regard.

In this connection, it may also be observed that, even if it were held that confidential remarks are classified/secret and an employee could not have knowledge of the same, these remarks, if produced or if any statement is made in respect thereof, cannot be ignored merely on the premises that such remarks form part of any confidential roll or are otherwise classified or secret. If a document is produced in the Court which is classified or secret, the Court will not be debarred from looking into it and it cannot be said to be inadmissible evidence though the concerned authority may take appropriate action against the employee for misconduct if there is any prohibition against production or disclosure of such documents. So far as the confidential reports are concerned. it has already been noted and it may be repeated that they are not classified or secret and there could be no prohibition against their production in Court.

It appears that in considering the question of malafide, the Tribunal confined itself to personal malafide and did not address itself to the question of legal malafide''. The Tribunal was not right in ignoring this aspect of the matter.

Considering the entire facts and circumstances, the judgment of the public Services Tribunal must be found to be substantially erroneous. Even if the Public Services Tribunal did not wish to go into the merit of the confidential entry, the least that should have been done by the Tribunal was to direct the opposite parties to reconsider the matter in regard to the promotion afresh on the ground that part of the confidential entry for the period 4111986 to 3131987 had been expunged by the State Government.

To sum up, therefore, except in regard to the quarterly inspection, the two adverse entries, recorded by the opposite party No. 2 for the short period 41186 to 3131987 in the year 198687 and for the period 141987 to 1781987 for the year 198788 must be held to be vitiated on the ground of legal malafide and arbitrariness being based on incorrect facts. The surviving entry regarding the quarterly inspection in the confidential remarks for the period 141987 to 1781987 must also be quashed for the reason that the earlier entry to the same effect was not communicated to the petitioner in time so that he did not have any opportunity to effect improvement in this regard. Had the petitioner been communicated the earlier entry within reasonable time, the petitioner could have made quarterly inspection and there would have then been no occasion to record such remark in the entry for the period 141987 to 17887 The remarks regarding quarterly inspections in the two entries are also vitiated for the reason that they are influenced by legal malafide, The other surviving factual statements in the entry for the period 41186 to 3131987 are incorrect and the general remarks in regard to the work, conduct and integrity cannot also be sustained. So far as the remark regarding integrity is concerned, it has been given in violation of the instructions contained in the Government order and for this reason and other reasons, noted above, that remark must also be considered to be arbitrary and without any basis. The judgment of the Public Services Tribunal is quite obviously cryptic and reveals non/application of mind. The observations and directions are contrary and there is no sufficient reason why the Tribunal did not consider the matter, particularly in relation to the entry against which representation had already been disposed of, on merit. Since the confidential entry for the period 141987 to 1781987 has been expunged by the State Government, except in so far as it relates to quarterly inspection and it has been found by this Court that this entry regarding quarterly inspection cannot also survive and further when the entry for the period 4111986 to 3131987 has been found to be unsustainable, it would be incumbent on the opposite parties to reconsider the case of the petitioner for promotion to the higher scale of P.C.S. with effect from the date he was entitled to be considered.

The petition is accordingly allowed with costs. The surviving adverse remarks in the confidential entries for the periods 4111986 to 3131987 and 141987 to 1781987 are quashed. The opposite parties are directed to consider the case of the petitioner for promotion to the higher scale of P.C.S., ignoring these two adverse entries, afresh and pass appropriate orders within a period of three months from the date a certified copy of this judgment is produced before them. If, on such a consideration, the petitioner is found eligible for promotion to the higher scale of P.C.S., such promotion shall be given to him from the date he would have been otherwise entitled. The judgment and order of the Public Services Tribunal, dated 2141992, shall stand modified to the extent noted above.