Mir Naimathulla vs The Director General, Railway Protection Force and Another

D.J. Jagannadha Raju, J.—This writ petition is filed for issuance of a writ of mandamus to direct the respondents to promote the applicant as Sub-inspector from the date his juniors were promoted i.e., with effect from Force Order 148/84 dated 19-10-1984 with all consequential benefits.

In this writ petition, Sri K. Laxminarasimham, the learned counsel for the petitioner, contends that the promotion to the petitioner was denied in the year 1984 on the ground that for the years 1982 and 1983, his Annual Confidential Reports contained adverse remarks. Mr. Laxminarasimham points out that the adverse remarks of Annual Confidential Report of 1982 were never communicated to the petitioner and hence, they cannot be taken into consideration. The adverse remarks for 1983 were written by an officer, who is not competent to write the remarks, because the petitioner worked under him only for less than six months period. Under the rules, an Officer under whom the incumbent worked for less than six months need not writ the confidentials and if he writes the confidentials, he will have to consult his predecessors and than make the endorsements. Such a thing was not done in this case. He also points out that the adverse remarks of 1983 were communicated to the petitioner subsequently after the promotion exercise was completed and they were actually communicated on 15-1-1985 under Annexure-XIII. On the representations made by the petitioner, all the adverse remarks for the year 1983 excepting the remark ''integrity very doubtful'' were set aside by the higher authorities. But none of the higher authorities considered the question whether Mr. Kotkar who wrote the ACR for 1983 is competent to writ the ACR for the year 1983 because admittedly, the petitioner served for less than three months under that Officer. Reliance is placed upon Instruction No. 4 to the Annual Confidential Reports of the Railway Protection Force.

That instruction reads as follows:-

"If the Officer has served under the reporting authority for less than six months, the authority under whom he has previously served should be consulted and their opinion incorporated in the report indicating how far the remarks against the relevant columns are based on personal knowledge and how far on reports of other authorities."

In the present case, the Officer, who wrote the Annual Confidential Report never followed this instruction. Admittedly, the petitioner served under him for about 45 days or so i.e., much less than the prescribed period of six months. The remarks themselves were communicated much later after the promotion exercise was completed; under letter dated 15-1-1985.

The crucial question in this case is, whether on the basis of such adverse remarks, the petitioner can be denied promotion in the year 1984?

On behalf of respondents, the learned standing counsel Mr. C. Ramakrishna contends that 1984 promotions were at one time exercise conducted in departure of the normal procedure for promotions from Asst. Sub-Inspector to Sub-Inspector. He has brought to the notice of the Court the relevant circulars, which govern the procedure to be followed regarding this one time promotion exercise undertaken in April, 1984. The first document dated 3-4-1984 lays down the criteria that are to be observed. The criteria fixed are (1) Five years service could be taken into consideration, (2) to be fit for promotion, a person should have at least three ''average or above average'' remarks without any adverse entry during those years, (3) anybody having adverse reflection on his integrity or having been accused of moral turpitude should be considered unfit and (4) Anybody undergoing punishment as on 1-4-1984 should be similarly considered unfit for promotion.

One of the important conditions stipulated is given in the communication dated 23-5-1984. This mentions that in addition to the conditions communicated in the letter dated 3-4-1984, the annual remarks of 1983 should be average or above average and without any adverse observations during that year. If the remark of 1983 is not average or above average, one would be unfit for promotion. Mr Ramakrishna, the learned standing counsel for the respondents, points out that in this case as the A.C.Rs. for 1983 did not give him the grading of average or above average and as there is an adverse remarks, the petitioner was not considered for promotion. Mr. Ramakrishna further pointed out that with regard to cases where the adverse remarks were not communicated to the Officers, a clarification was issued on 7-12-1984 and this clearly contemplates that if the representations are made on the adverse remarks communicated, those representations should be disposed of and in the mean while the provisional penal can be declared for the vacancies and certain posts should be kept vacant for those, who have not been selected for promotion on the basis of adverse entries in their annual confidential reports, which were not communicated to the individuals concerned. Mr .Ramakrishna points out that in this case in spite of various representations and appeals, the adverse remarks have not been expunged fully and hence, the petitioner was not promoted, as he does not satisfy the criteria for promotion.

Gurdial Singh Fijji v. State of Punjab 1974 (2) SCC 368 clearly held that an adverse entry in the confidential reports cannot be acted upon till the opportunity for representation against has been afforded and considered. The Supreme Court was considering a case of an adverse entry written long ago and it was communicated, but if was not considered for various reasons. That adverse entry was utilised to condemn the man and not to give him promotion to the selected list. The adverse entry resulted in the Chief Secretary refusing to give him integrity certificate. In such a context, the Supreme Court observed in paragraph 17 at page 376 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 as 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 non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him."

This ruling was followed in Brij Mohan Singh Chopra v. State of Punjab 1987 (3) Adm T Case 496. The Supreme Court was dealing a case of an officer being prematurely retired on the basis of adverse entries in the confidential reports, which were more than ten years old. In such a context, the Court held that stale adverse entires of more than ten years past should not be taken into account and further observed that adverse entires in the confidential record should be communicated to the effected Government servant and his representation against such record should be disposed before taking into account the entries with a view to form any opinion against him.

State of Haryana v. P.C. Wadh 1987(3) ATC 690 wa is a decision of the Supreme Court. In this case, adverse remarks were communicated after a delay of 27 months. The concerned individual to whom the adverse remarks were communicated after delay of 27 months was working as Inspector General of Police, Haryana. He straight away filed a writ petition in the High Court to quash the adverse remarks. The High Court allowed the writ petition and quashed the Home Secretary''s adverse remarks in the report. When the State filed an appeal against it the Supreme Court dismissing the appeal observed in paragraph 14 at pages 699 and 700 as follows:-

"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 after twenty seven months.... Where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance."

Judged in the light of the above three decisions, in the present case, the confidential report of 1983 was communicated to the petitioner in January, 1985 by which time damage was already done to him by not promoting him in 1984 promotions. When he represented against that though partial relief was given to him by expunging some of the remarks, the superior authorities never went into the question about the competence of the Reporting Officer to write the confidential report when the petitioner worked under him for less than six months. In this background, we have necessarily to hold that the adverse remarks of 1983 are neither valid nor can they be acted upon to the detriment of the petitioner.

As regards the adverse remarks in the confidential report for the year 1982, it is now found that these remarks were never communicated to the petitioner. The two copies prepared for purpose of communication are found in the file. Though they appear to have been got ready on 14-3-1983, they were never despatched. Naturally uncommunicated adverse remarks in the confidential report of 1982 cannot be taken into consideration. It is interesting to see that the very Officer, who has given him an adverse report in 1983, has given him a good report both in 1984 as well as in 1985. In 1984, he rated him as average and considered him as very co-operative, loyal and faithful and that his integrity is beyond doubt. For the year 1985, he earned a very good report and he was classified as good and fit for promotion and he was also considered as a person with integrity beyond doubt.

Considering the fact that the promotion was denied purely on the ground of adverse remarks of 1982 and 1983, which were not communicated to the Officer and which were not considered by the higher authorities inspite of representations, the action of the respondents in denying promotion to the petitioner on the basis of those reports is unwarranted and illegal. The action taken by the respondents is highly arbitrary. The petitioner is certainly entitled to the writ of mandamus prayed for.

In the result, the writ petition is allowed. There shall be a direction to the respondents to promote the petitioner as Sub-Inspector from the date his juniors are promoted as per the Force Order 148/84 dated 19-10-1984. He will be entitled to all consequential benefits like seniority, increments, etc. Each party shall bear its own costs. The order shall be implemented within a period of three months from the date of a receipt of the copy of this order.