Rajesh Kumar Saxena vs State of M.P. and Another

This petition was originally filed as original application before Madhya Pradesh Administrative Tribunal and has come on transfer before this Court after closer of the Tribunal and is registered as Writ Petition. The claim made in this petition by the petitioner is for quashment of the adverse entry recorded in the confidential reports of the years 1993 and March, 1994 as also a direction to respondents to promote the petitioner on the post of Junior Auditor/Accountant Grade-II, w.e.f. the date his juniors were promoted with all consequential benefits. It is contended by the petitioner that he was communicated the adverse entry recorded in his annual confidential report ending 31st March, 1993 belatedly. The petitioner filed a representation but the said representation was rejected. Similarly the adverse entry in the annual confidential report ending 31st March, 1994 was communicated to the petitioner belatedly, against which again a representation was made by the petitioner but instead of considering the same in appropriate manner, by communication of the orders in the years 1995-1997 it was said that the representation of the petitioner is rejected. It is contended that in fact the adverse entry deliberately was made to deny promotion to the petitioner and the same was communicated only at the eve of Departmental Promotion Committee meeting in the year 1994. Because of such adverse entry, the claim of the petitioner was not appropriately considered for promotion and juniors to him were promoted by an order dated 9-5-1994. This lead the petitioner to file the present petition before Madhya Pradesh Administrative Tribunal. On the basis of these submissions the relief(s) aforesaid have been claimed.

In response to the notice of the petition respondents have filed a reply. They contended that the Departmental Promotion Committee meeting was held in which the case of the petitioner was considered but since there were adverse entry recorded in the annual confidential report of the petitioner for the year March ending 1993, he was not found fit for promotion. Such entry was communicated to the petitioner. Similarly it is contended that there were adverse entry for the year ending March, 1994 which too was communicated to the petitioner a representation made against the adverse entry was considered and rejected by the respondents. Subsequently the Departmental Promotion Committee meeting was held on 5-4-1999 in which the case of the petitioner was considered. The petitioner was granted an opportunity to appear before the committee to explain his conduct. There were reports with respect to integrity of the petitioner and a show cause notice was issued to him. Thereafter, receiving the information and comments with respect to adverse entry made against the petitioner in his confidential report appropriate orders were passed. Thus, it is contended that no wrong was committed in passing the order impugned and as such the petitioner is not entitled to any relief whatsoever.

Refuting such allegations made in the return of respondents a rejoinder has been filed by the petitioner stating that he has filed reply to the show cause notice and thereafter nothing was done in that respect. Without holding an inquiry how it could be said that integrity of the petitioner was doubtful. It is further submitted that mala fidely only on the comments by those who were prejudiced against the petitioner, the representations of the petitioner were decided. It is contended that in fact the adverse entries were to be communicated to the petitioner within time as per circular of the State Government in General Administration Department issued on 9th March, 1992. Prior to this also the circulars were issued prescribing a period within which the adverse entry was to be communicated and within which the representation if any made against the said entry was to be considered. Thus, it is contended that since the adverse entry was not communicated to the petitioner within time, there was no justification of making of such adverse entry in the confidential report of the petitioner, the orders were not rightly passed on the representation of the petitioner, therefore, the entire stand of the respondents is liable to be ignored and the petitioner is entitled to grant of relief as claimed in the petition.

Heard learned counsel for parties at length and perused the record.

The object of writing of annual confidential reports is well known in the service jurisprudence. The confidential reports of an employee is to be written only for the purposes of adjudging his service abilities. If an employee of the department, who was having the excellent service record or satisfactory service record, started showing downfall in performance or discharge of his duties, the entries are required to be made in the annual confidential report. Such entries whether adverse or not, are required to be shown to the said employee to apprise him or her with respect to performance of duties so that he or she may improve the working in future. The object of recording of annual confidential report would be frustrated in case it is not timely communicated. This being the reason, the State Government has issued the circular time and again directing as to how the adverse part of the annual confidential reports are to be communicated, within which period the said communication is to be made and within which period the representation if any made against such entry, is required to be decided. This has been reiterated in the circular dated 9th March, 1992, wherein all the circulars previously issued right from 1979 up to 1990 have been referred. The State Government has very categorically provided a time mechanism for writing of the confidential report. The initiation of annual confidential report is to be done by 15th April. The Reviewing Officer is required to give his comments by 1st of May. The approving authority is required to record his comments by 15th May. If any adverse entry is recorded, the same is to be communicated within 30 days from the aforesaid final date mentioned in the circular. If any representation is made against the said adverse entry, the same is to be decided within a month. If any inquiry is required to be conducted with respect to the representation made against the adverse entry, that has to be completed within a period of three months. This indicate that intention of the State Government is to apprise the employee concerned against whom the adverse entry is recorded, with respect to such adverse entry and to complete the process of finalizing the representation etc. made against such entry within the stipulated period so that nobody may face any prejudice or inconvenience in case of promotion. This being so, it was necessary on the part of the respondents to communicate the adverse entry to the petitioner timely.

From the record it is clear that adverse entry was recorded in the annual confidential report of the petitioner ending 31st March, 1993 but the same was sent for communication only on 9-3-1994. This was grossly in violation of the instructions of the State Government. Further the entry made against the petitioner in this particular year, in confidential report was to the effect that the complaints against the behaviour and delay caused by the petitioner were being received and the petitioner was to improve his working and behaviour. Whether any complaints made against the petitioner were enquired into and whether any fact was found proved or not, is not clear from such entry. How could it be treated as an adverse entry against the petitioner when there was no proof of such complaints made against the petitioner or atleast when no inquiry whatsoever was conducted against the petitioner. The petitioner while making representation has categorically stated that he was not in a habit of misbehaving with anybody only his way of talking was such. He categorically contended that none of his superior officers or colleagues have made a complaint against him that he has ever used derogatory language while conversing. To this effect whether any comments were called, whether any information was obtained or not is not clear. Nothing has been placed on record to indicate as to how such a fact was found proved against the petitioner. Even the comments received from the authorities nowhere indicates that there were complaints. On the other hand come officers of the University where the petitioner at that time was working made the comments that the petitioner was behaving in such improper manner. From such comments it is also not clear that the inquiry in respect of such a conduct of the petitioner was ever conducted or not. Merely one officer who has initiated the annual confidential report, has made comments in this respect, how could it be said that the adverse entry was properly made against the petitioner. One more aspect is required to be examined. While considering the representation made against adverse entry recorded in the annual confidential report, the previous confidential reports are required to be examined and it is to be judged whether any prejudicial comments have been made by the reporting officer or not. Nothing has been placed on record to indicate that the representation of the petitioner was considered in this cogent manner. Thus, a single line rejection order issued in respect of such a representation of the petitioner, specially when a belated communication of adverse entry was made, cannot be sustained. On the other hand such adverse entry was liable to be ignored or expunged, on the ground that the adverse entry was not communicated within time or expeditiously.

As far as the adverse entry for the annual confidential report ending 31st March, 1994 is concerned it was recorded that the petitioner is a cunning, arrogant and harsh employee. It was recorded that integrity of the petitioner is not beyond doubt. It was recorded that the petitioner was discharging the duty as per his wish. It was again recorded that the petitioner was dis-curtious to his superior. This entry was communicated to the petitioner vide memo dated 3-2-1995. Again such entry was communicated after the period prescribed by the State Government. Again it is to be seen that the entries were made by the very same officer as the petitioner was posted in the same establishment at that time. The officer who has initiated annual confidential report for the year 1993 has written the annual confidential report for the year 1994. Obviously once the adverse comments were recorded in the previous confidential report the same were reflected again in the next confidential report. The petitioner has made a representation against such adverse part of confidential report and has categorically contended that all these comments were made out of the prejudices. There were no complaints received against the petitioner with respect to his integrity. No inquiry whatsoever was conducted in that respect and therefore such an entry was nothing but a prejudicial act of the reporting officer. The fact remains that adverse comments with respect to the integrity of an employee are not be made cursorily. On the other hand a detailed inquiry is required to be conducted and then only it is to be noted down in the annual confidential report. If this is not done, the adverse entry cannot be sustained. It is clear from the record available that no inquiry in that respect was conducted up to the date the entry was made in his confidential report. Only a show cause notice was issued on 18-2-1994 with respect to disposal of case of one of the retired Principal but even after filing of reply to such a show cause notice, no final decision was taken by respondents. If there was no proof of doubtful integrity of the petitioner, such was not to be recorded in his confidential report. Apart from the fact that the communication of the entry was not timely made, it is also clear from the documents available on record that such entries could not have been made against the petitioner, without holding an inquiry.

The another aspect is more important which has not been denied in appropriate manner by respondents. Admittedly the annual confidential reports were being examined for the purposes of holding a Departmental Promotion Committee meeting for the purposes of consideration of cases for promotion. As is indicated in the return, the said committee meeting was scheduled to be held on 9/10th March, 1994. The first adverse entry was communicated to the petitioner on 9-3-1994. This itself is clear that only because respondents were not willing to consider the case of the petitioner for promotion in appropriate manner, such entry was communicated to the petitioner just on the eve when the Departmental Promotion Committee meeting was to be held. This itself is enough to show that there was bias and prejudice in the mind of the respondents-authorities in sending communication with respect to the adverse entry recorded in the confidential report of the petitioner for the year ending 31st March, 1993. Upon their own showing as they have contended, the annual confidential reports up to years 1989-1993 were to be considered for promotion on the said Departmental Promotion Committee meeting held on 9/10th March, 1994. Thus, the contention raised by the petitioner that out of prejudice he was communicated the adverse entry in ACR of 1993 at such belated stage cannot be ruled out. Had it been a case that the entries were made at the relevant time, it was the responsibility of the departmental authorities to communicate the same to the petitioner within time so that the representation if any made against such entry would have been decided by the time Departmental Promotion Committee meeting was convened.

Merely because the petitioner was called upon to appear before the Departmental Promotion Committee to explain his conduct in the year 1999 will not absorb all the responsibilities of respondents. The respondents were duty bound to communicate the adverse entry to the petitioner within time and were required to consider the representation made against such adverse entry by the petitioner, within time, but this was not done.

Though all these facts have categorically been averred in the rejoinder filed by the petitioner, however, nothing in rebuttal has been placed by respondents. They have not disputed that the petitioner filed a detailed reply to the show cause notice issued to him. They have not disclosed whether any inquiry was conducted in that respect or any order was passed with respect to issuance of such a show cause notice. This is enough proof of lapses on the part of respondents. The petitioner cannot be made to suffer on account of lapses on the part of respondents. The settled law is that if the annual confidential report is coming in way, for promotion it is to be treated as adverse and if not communicated within time, it is to be expunged. It is also settled law that in case of expunging of the adverse remarks the review Departmental Promotion Committee is required to be held to reconsider the claim for promotion in view of the law laid down by the Apex Court in U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, , U.P. Jal Nigam Vs. S.C. Atri and Another, and Dev Dutt Vs. Union of India (UOI) and Others, It would be appropriate for this Court to direct reconsideration of the case of the petitioner for grant of promotion as in this case it is found that the adverse entries were improperly made.

In view of the foregoing discussion and keeping in view the fact as have come on record, this petition deserves to be and is hereby allowed. The order rejecting the representation of the petitioner against the adverse annual confidential reports are quashed. The respondents are commanded to expunge the adverse entry recorded in the confidential reports of the petitioner for the years 1992-1993 and 1993-1994 and to regrade the said annual confidential reports of the petitioner after expunging of the adverse remarks. The respondents are directed to convene a review Departmental Promotion Committee and to consider the case of the petitioner for grant of promotion on the post of Junior Auditors/Accountant Grade-II w.e.f. 9-5-1994 the date when his juniors were promoted on the said post. In case the petitioner is found fit for such promotion, he be granted such benefit of promotion with retrospective effect from the date the juniors to him were promoted on the said post. Needless to say that the petitioner would also be entitled to all consequential benefits of such promotions such as pay allowances and seniority. The aforesaid exercise be completed within a period of four months from the date of receipt of certified copy of the order passed today. In the facts and circumstances of the case there shall be no order as to costs.