Rajendra Prasad vs State of Rajasthan and Others

Jaishree Thakur, J.—This present writ petition has been filed under Article 226 of the Constitution of India, giving challenge to the adverse entries communicated in the Annual Performance Appraisal Report (hereinafter for short ''APAR'') for the Years 1995-96 and 1996-97.

The petitioner was appointed as Naib Tehsildar in the Year 1984 and promoted to the post of Tehsildar in the Year 1988 on ad hoc basis. While continuing on ad hoc basis, the petitioner was selected and promoted as Tehsildar on regular basis against the vacancies of 1991-92. The petitioner was transferred as Tehsildar, Mavli. During that period, he was awarded several certificates and letters of appreciation and also was given a cash reward for a sum of Rs. 1000/-. Despite his good performance, he was communicated with adverse remarks in his APAR for the years 1995-96 and 1996-97. Against the Communication of these adverse entries, the petitioner moved a representation which came to be rejected by respondent No. 2 namely the Chairman, Board of Revenue for Rajasthan at Ajmer.

Aggrieved against the said adverse entries and the rejection of the representation, the present writ petition has been filed.

Mr. M.S. Singhvi Senior Advocate with Mr. Hemant Dutt, Advocate appearing on behalf of petitioner contended that both adverse entries have been recorded by the Reviewing Officer and not by the Reporting Officer. The Reporting Officer had accorded ''Good/satisfactory'' in the APARs and it is Reviewing Officer, who made the adverse entries. It is further argued that neither the Reporting Officer nor the Reviewing Officer ever pointed out any deficiency in the performance of the petitioner during the period 1995-96 to 1996-97.

Written statement has been filed by the State. Per contra, Ms. Pratistha Dave, Additional Government Counsel appearing on behalf of respondents has argued that the petitioner was in habit of leaving head quarters without information and did not discharge his duties as a field officer as expected. It is further contended that the representation of the petitioner was duly considered before rejecting the same. The Reviewing Officer also noted that the petitioner did not keep himself abreast with the changes in the revenue laws and did not involve himself in other development activities like family planning programs, small saving programs etc.

Resultantly, the Reviewing Officer rightly made the adverse remarks against him. The petitioner has filed rejoinder to the said reply controverting the stand taken by the respondents.

I have heard the learned counsel for the parties and with the help have also perused the record of the case.

A perusal of the record submitted by the Department shows that the petitioner in his APAR had been assessed as ''Good'' by the Reporting Officer in assessment of nature and quality of work, rules and procedure, intelligence and decision making ability, inter-personal relations and overall assessment of satisfactory had been given to him. In the said annual appraisal 1995-1996 and 1996-97 notes were also appended which is as under:--

The Reviewing Officer on 13.10.1996, agreed with the comments made by the Reviewing Officer, however went on to further remarks which are as under:--

"But the reportee officer lacks initiative and interest desired for a field officer in the discharge of duties - Revenue and general administration. Even the APR form is submitted after 17 months. Reporting officer should have initiated his APR on his own as per govt. guidelines.

* Lack of control over field staff.

* Use to leaving hqrts. without information.

* Immovable property return statement not filled."

Similarly, for the APARs for the Year 1995-96 and 1996-97 and overall assessment of ''Satisfactory'' had been accorded by the Reporting Officer which was agreed in principle by the Reviewing Officer who again further went on to remark 1995-96.

"Reportee officer is advised to take more interest in the field job which is doing, keep himself abreast with the changes in revenue laws and involve in other developmental activities viz., saksarta, small saving programs, Family Planning Programs and exercise effective control over the field staff.

Property statement not filled."

The petitioner has been awarded certificates for actively participating in the programs relating to social welfare and has been awarded certificates of appreciation issued by Social Welfare Department and Department of Revenue as well as cash award of Rs. 1,000/- in 1997. He was also issued certificate appreciating his work in the field of Family Welfare Programme. The file also reveals that prior to the Year 1995-96, the petitioner was accorded ''Outstanding'' for the Year 1994-95 and subsequent to the note made by the Reviewing Officer in the APAR, the petitioner has been accorded ''Outstanding performance'' for the year 1997-98, 1998-99 and 1999-2000. The comments reveal that the Reviewing Officer is of the opinion that the petitioner lacks initiative and interest as desired in a field in the discharge of the duties. After agreeing with the general assessment made by the Reporting Officer, the Reviewing Officer ought to have been more specific as to how the petitioner lacked initiative in the filed specially when the Reporting Officer had accorded ''Good'' for intelligence, rules and procedures, knowledge and share of work. As far as the remark of lack of control over field staff, there is nothing on the file which shows that there was lack of supervision. The reviewing officer had remarked that the petitioner should keep himself abreast with changes in revenue laws rules whereas for the previous years in the column of "Rules" the very same person has been marked as ''Outstanding'' in the APAR''s submitted for the Year 1992-93 and 1994-95.

It is trite to say that the Reporting-Reviewing Officer have an onerous job in filling the APAR''s of an employee specially when such APAR''s will have direct bearing upon the promotion of an employee. The purpose of adverse entries is to make a person aware about his performance and to improve his work performance. As per the Instructions of 1976, a detailed procedure has been laid down in regard to recording of Annual Performance Appraisal Reports. It is specified that the Reporting Officer must call upon the employee concerned and give him an opportunity to improve his performance. In the present case, the petitioner who had been awarded ''Good'' and ''Outstanding'' entries in the APARs for previous years would have had no opportunity of being made aware of any deficiency in his performance nor an opportunity to improve, since it was the reviewing officer who made the adverse entries. This is against the spirit of the instructions issued and also against the principles of natural justice. In State of U.P. Vs. Yamuna Shanker Misra and another, the Supreme Court dealing with a similar situation held. As under:

"7 It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A (j) enjoins upon very citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."

Suffice it to say that there is no such material on the record to substantiate the adverse remarks. Had it been the case that the petitioner was lacking initiative or control over the field staff, he would not have been awarded letters of appreciation, several certificates and also was cash award for a sum of Rs. 1000/-. The remarks about visiting the Head quarters frequently are themselves vague and unsubstantiated. Again the record does not reveal that any such warning/communication had ever been addressed to the petitioner in this regard. It is also not disputed that while working on the post of Tehsildar, the petitioner achieved 99% achievement under the Pulse Polio Programme and also participated under the Literacy Programme. Therefore, while acknowledging the fact that the petitioner had participated in various programs organized by the Department, the recording of the APAR with adverse remarks by the reviewing officer on the ground that he lacks initiative and the rejection of the representation is not well founded.

Dr. Pratisha Dave Additional Government Counsel for the respondents has argued that that the Reviewing Officer while making the remarks had correctly observed that the petitioner lack initiative, delayed in the filling of the ACRs, which was sufficient to pass the adverse remarks and hence this Court ought not to interfere in the matter. Reliance has been place upon Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, . Undoubtedly, the courts ought not to interfere in administrative matters, however if there is no basis on the record to substantiate the adverse remarks, the courts can certainly look into the matter as to how such a conclusion has been arrived at, while keeping in mind that unwarranted remarks spoil the entire career of the employee. After having perused the record, I find that there is no basis for the adverse remarks to have been made, and also I note that the petitioner had been awarded ''Outstanding'' for years prior to the adverse remarks and also ''Outstanding'' subsequent thereto.

For the reasons stated above, this petition for writ deserves acceptance, therefore, the same is allowed. The adverse remarks entered in the petitioner''s Annual Performance Appraisal Report for the period from 1995-96 and 1996-97 is hereby expunged. The petitioner shall be entitled for all benefits flowing as a consequent to expunging the adverse remarks referred above.