R.J. Zala vs Deputy Inspector General of Police and Others

Akil Kureshi, J.—The petitioner has challenged adverse remarks in his service record communicated to him vide communication dated 19.9.1987. Remarks pertain to the period between 1.4.1986 to 31.3.1987 and reads as follows:

Overall Assessment - Tends to be casual. Lacks supervision over police HQ

The petitioner at the relevant time was holding post of Police Inspector in the State Police Service.

Against such adverse remarks, the petitioner made his representation dated 2.2.1988 which was turned down by an order dated 19.1.1989 stating that representation of the petitioner has been considered carefully. However, there are no grounds to expunge remarks. Representation is therefore, rejected.

It appears that shortly thereafter petitioner was permitted to cross Efficiency Bar by order dated 5.4.1988 with effect from 1.11.1986.

The petitioner eventually retired on superannuation with effect from 31.1.1998. Though Counsel for the petitioner stated that in the meantime, the petitioner was also promoted to the next higher post of Dy. SP, he is unable to state the exact date of such promotion.

Learned Counsel for the petitioner submitted that adverse remarks were communicated after much delay of about six months. He further contended that representation of the petitioner was also disposed of after nearly four months. Thus delay would be fatal. He further contended that the petitioner was allowed to cross efficiency bar by order dated 5.4.1988 with effect from 1.11.1986. Adverse remarks for the petitioner was for period between 1.4.1986 to 31.3.1987 would lose its significance.

Learned Counsel for the petitioner relied on the following decisions:

1) In case of Baidyanath Mahapatra Vs. State of Orissa and Another, wherein it is observed that adverse entries awarded in remote past preceding promotion and crossing of efficiency bar, could not form the basis for compulsory retirement of a Government servant. In the same judgement, it is also been observed that delay in communication of adverse remarks defeats the purpose of such communication.

2) In case of S. Tripathi Vs. State of Gujarat and Others, wherein Learned Single Judge of this Court observed that adverse remarks without any factual foundation cannot be countenanced.

3) In case of Dr. B.R. Kulkarni v. Government of Gujarat and Ors. reported in 19 GLR 1021 wherein Learned Single Judge stressed the requirement of following guidelines for communication of adverse remarks and consideration of representation of Government Service against such remarks.

It was next contended that remarks are vague and general in nature. No specific instances have been pointed out in support of such remarks.

On the other hand learned AGP for the State opposed the petition, however, without any reply on the record. She contended that it is not clear whether adverse remarks resulted into adverse consequences to the petitioner.

Having thus heard learned advocates for the parties, though it is true that petitioner has not pointed out in the petition whether impugned adverse remarks resulted into any denial of promotion to the petitioner, it is not possible to conclude the petition only on that ground. I have therefore, considered the challenge to the adverse remarks on merits.

At the outset, it may be noted that the petitioner has not alleged any mala fide on the reporting of the reviewing officer in writing and confirming such adverse remarks. Such officers are not even joined as respondents in personal capacity. In absence of any such allegations of mala fide, when the reporting officer has recorded such remarks which has been agreed to by the reviewing officer and when representation of the petitioner also has been considered by the higher officer, it is not possible to expunge such remarks only on the ground that there is no sufficient material to sustain such remarks.

In case of Swatantar Singh Vs. State of Haryana and others, the Apex Court was considering the challenge to the adverse remarks on the ground of vagueness and lack of sufficient material when it was conveyed to the concerned officer that "he can become a good police officer if he can control corruption and temptation.". In this regard Apex Court observed as under:

5.... More often, the corrupt officer manipulates in such a way and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus, appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-a-vis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, prove honesty and integrity in future in which event, obviously, the authority for the subsequent period. The appellate authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.

In view of the above observations of the Apex Court, it cannot be stated that adverse remarks under consideration suffers from vagueness. Adverse remarks were communicated within about six months from the completion of period under review. Representation of the petitioner was also disposed of within approximately four months of making such representation. It cannot be stated that undue delay on part of the Government to deal with this issue and communicating adverse remark has turned out to be fatal to the petitioner.

With respect to the contention that once the petitioner was allowed to cross efficiency bar, adverse remark would lose its significance, it may be noted that though the order for crossing of efficiency bar was passed on 5.4.1988, same was given effect from 1.11.1986. Period during which adverse remarks were made was 1.4.1986 to 31.3.1987. Competent authority therefore, when was considering the petitioners eligibility to cross efficiency bar with effect from 1.11.1986, could not have taken into consideration adverse remarks for the period between 1.4.1986 to 31.3.1987. Decision to permit the petitioner to cross efficiency bar with effect from 1.11.1986 therefore, cannot be seen as ignoring or glossing over any adverse conduct of the petitioner for the period between 1.4.1986 to 31.3.1987. In any case, in case of Swatantar Singh (supra), it was observed that adverse entry made in the distant past after which Government servant is granted promotion or allowed to cross efficiency bar, would lose its significance. This is not the case of the adverse entry of distant past. In case of Badrinath v. Government of Tamil Nadu and Ors. reported in 2000 (8) SCC 395, the Apex Court reiterated the above proposition and stated that while considering a Government servant for promotion, entire service period should be taken into consideration. Adverse remark relating to distant past cannot be given weight and that remarks preceding the earlier promotion must be treated to have lost their sting provided those remarks relating to dishonesty or lack of integrity can be considered not to have lost their significance altogether. To reiterate, the petitioner was permitted to cross efficiency bar with effect from 1.11.1986 whereas period for consideration of adverse remark was 1.4.1986 to 31.3.1987 which would be outside the purview of the authority considering the case of the petitioner for crossing of efficiency bar.

Considering all these aspects of the matter, no case is made out. Petition is therefore, dismissed. Rule is discharged.