Prabh Dayal vs Haryana State

R.L. Anand, J.—This regular second appeal has been filed by Prabh Dayal and has been directed against the judgment and decree dated 27.5.1997 passed by Addl. District Judge, Karnal, who set aside the judgment and decree dated 28.9.1996 passed by Civil Judge (Junior Division), Karnal, who decreed the suit of the plaintiff-appellant for declaration as prayed for, for the following reasons as given in paras 18 to 20 of the impugned judgment :-

"18. I have gone through all the afore-mentioned judgments quite carefully. However, in all these cases the aggrieved employee had filed writ petition in the Hon''ble High Court under Article 226 of the Constitution of India thereby invoking ex tra-ordinary jurisdiction of the Hon''ble High Court. It has been rightly argued by the learned G.P. for the State that the Hon''ble High Court is empowered under Article 226 of the Constitution of India to issue appropriate writ in case a particu lar government authority does not act in accord ance with the rules and instructions on the subject and in case the appropriate government authority acts with mala fide intention andhence it has been rightly argued that in-none of the authorities, it has been held by our Hon''ble High Court that civil court is also having jurisdiction to adjudicate upon the point as to whether the ACR of an employee has been correctly recorded by the reporting officer or not.

No other authority has been produced on behalf of the plaintiff-respondent on the point.

Hence, in view of legal proposition held by our Hon''ble High Court in Janak Raj Jain''s case (supra) and Mohal Lal''s case (Supra), I am of the view that the civil court is having no jurisdiction to decide the matter as to whether ACR of an employee has been correctly lecorded by the reporting officer or not. Hence, in my view the present suit is not maintainable before the civil court."

The brief facts of the case can be summarised in the following manner ;-

Plaintiff Prabh Dayal filed a suit for declaration that the adverse remarks entered in his annual confidential report for the period from 1.4.1991 to 30.11.1991 be ordered to be quashed/expunged with consequential relief that his name be considered for promotion as Personal Assistant from the date his juniors were promoted along with all the consequential benefits. The case set up by the plaintiff in the trial court was that he joined the Police Department as Constable and later on he was promoted as Senior Scale Stenographer. As per the order of the Director General of Police, Haryana dated 5.2.1990, he along with some other persons were eligible for further promotion as Personal Assistant and hence he made request for gaining experience of Assistant Grade-A for further promotion on 12.2.1990. He was posted as Head Clerk in the grade of Assistant Grade-A in the office of Superintendent of Police, State Vigilance Bureau, Kamal vide order dated 14.3.1991 and he had been performing his duties honestly and efficiently. However, vide order dated 29.6.1992 passed by the Director General of Police, Haryana adverse remarks for the period from 1.4.1991 to 30.4.1991 were conveyed to him and thus the made a representation against the said adverse remarks. His representation was rejected without giving any reason. He also served a notice u/s 80 CPC upon the department before filing the suit. In short, the case of the plaintiff is that the adverse remarks for life period from 1.4.1991 to 30.11.1991 are illegal, null and void because those have been recorded by an officer after his retirement; that the reporting officer has not cared to comply with the directions dated 12.10.1985; that his past record always remained very good and in these circumstances the adverse remarks cannot become a bar for his further departmental promotion according to rules.

Notice of the suit was given to the defendants who filed the written statement and denied the allegations. According to the defendants, the plaintiff had no to cus-standi to file the suit; that he had no cause of action to file the suit; that the suit was bad for non-joinder of necessary parties and that the civil court had not jurisdiction to entertain and try the suit as the plaintiff has not approached the civil court with clean hands. On merits, the stand of the defendants was that adverse remarks were conveyed to the plaintiff by the competent authority. He made representation against the remarks which was rejected by the competent authority. The adverse remarks were not given by the competent authority without any basis or male fide intention, rather those remarks have been recorded according to rules and instructions.

From the above pleadings of the parties, following issues were framed by the trial Court :-

" 1. Whether adverse remarks entered in the ACR of the plaintiff for the short period from 1.4.1991 to 30.11.1991 are liable to be quashed/expunged on the grounds mentioned in the plaint ? OPP

Whether the plaintiff has no locus standi to file the present suit ? OPD

Whether the plaintiff has no cause of action to file the present suit ? OPD

Whether the suit is bad for mis-joinder and nonjoinder of necessary parties ? OPD

Whether the civil court has got no jurisdiction to entertain and try the present suit ? OPD

Whether the plaintiff has not come to the court with clean hands ? OPD

Whether the suit is bad for want of legal notice ? OPD

Relief."

The parties led evidence in support of their respective cases and vide judgment and decree dated 28.9.1996 the trial court decreed the suit of the plaintiff and the adverse remarks were declared illegal and were set aside. The State of Haryana was not satisfied with the judgment and decree of the trial and it preferred an appeal before the Addl. District Judge, Kar-nal, who vide impugned judgment and decree dated 27.5.1997 allowed the appeal for the reasons quoted above and the suit of the plaintiff was dismissed. This time it was the plaintiffs turn to come to the High Court in regular second appeal.

I have heard Mr. Deepak Agnihotri, Advocate on behalf of the appellant, Mr. Ravi Dutt Sharma, AAG, Haryana for the respondents and with their assistance have gone through the records of this case.

The records of the trial Court have also been perused. During the course of submissions this court has also the occasion to go through the original ACR of the appellant for the period from 1.4.1991 to 30.11.1991. Againsl the column, as to whether the officer is industrious and honest, it has been mentioned by the reporting officer "integrity doubtful". The appellant is aggrieved by these remarks and the point for determination would be whether these remarks can be sustained or not. The first Appellate Court has dismissed the suit of the plaintiff-appellant mainly on the ground that the civil court has no jurisdiction to entertain this type of suit as the civil court cannot sit over the judgment of the reporting officer. I am not in a position to subscribe to the view taken by the first Appellate Court. As per Section 9 of the Code of Civil Procedure, all civil causes of action are triable by the civil court unless the jurisdiction is expressly or impliedly barred. The recording of ACR of course is the subjective satisfaction of the reporting officer, but he has not the absolute right to make or mar the career of any official/officer. To declare a public officer that he is dishonest is a stigma on his service career and before recording these type of remarks, a heavy sense of responsibility has been cast upon the reporting officer even as per the instructions of the State Government which have been relied upon by the appellant in the plaint. Repeatedly it has been held by the Hon''ble Supreme Court and High Courts that the reporting officer must be satisfied with some cogent basis which has come to his notice during the course of service about the integrity of an officer. In the report under challenge the reporting officer has simply mentioned "doublfui" without giving any basis as to how the plaintiff-appellant was declared a man with dishonest integrity. This court has also gone through the other ACRs of the appellant. In the ACR for the period from 1.4.1990 to 1.2.1991 the integrity and honesty of the officer has been declared in order. Even in the subsequent ACR the integrity has been declared of the highest order. In this view of the matter, I am of the opinion that the entry "integrity doubtful" for the period from 1.4.1991 to 30.11.1991 cannot be sustained in the eyes of law when the reporting officer has no basis to give that finding. Moment it is held and declared that the recording of the ACR is not in accordance with the rules, the civil court has certainly the jurisdiction to entertain the suit. The plaintiff was nonsuited by the first Appellate Court only on the ground that the civil court had no jurisdiction. I do not subscribe to the reasons given by the first Appellate Court.

Resultantly, I hold that miscarriage of justice has been done to the plaintiff. Therefore, he is entitled to the relief claimed for. Hence, this appeal is hereby allowed, the judgment and decree passed by the first Appellate Court is set aside and the judgment and decree of the trial Court is restored. There shall be no order as to costs.

Appeal allowed