Vishwanath Ojha vs The State of Bihar and Others

N. Pandey, J.—Both these writ applications have been filed on behalf of the same Petitioner for quashing the adverse remarks of annual confidential character rolls for the year, 1982-83 and the subsequent year, 1983-84 as also to quash the orders contained in Annexure 2 and 3, whereby and where under, Petitioner''s representation and memorial were rejected by the State Government. C.WJ.C. No. 2321 of 1991 is with respect to the adverse remarks of the year, 1982-83 whereas C.W.J.C. No. 2319 of 1991 against the adverse entry of the year, 1983-84.

The Petitioner was directly recruited and appointed as Deputy Superintendent of Police in the Police Department of the State of Bihar in the year, 1975. According to the Petitioner, in the year, 1987 he was eligible to be considered for promotion as a member of the Indian Police Service under the provisions of the Indian Police Service (Recruitment) Rules, 1954, hereinafter referred to as "the Rules", read with the Indian Police Service (Appointment by Promotion) Regulations, 1955 (in short "the Regulation"). Though the service record of the Petitioner was placed before the Selection Committee constituted under Regulation 4 of the Regulations for the purpose of preparation of a list of suitable officers for promotion to the Indian Police Service cadre of the State of Bihar, but he could not be included in the select list, since he was only graded "good" due to the adverse entries in the character rolls of the year, 1982-83 and 1983-84, which were communicated to him on 28.6.1985 and 3.3.1985 respectively.

This appears not in dispute that on receipt of the communications of the above mentioned adverse entries, Petitioner filed two separate representations before the Director General of Police (Administration) i.e. one against the entry for the year, 1982-83 and the other with respect to the entry of the year, 1983-84, rejected on 25.2.1988. Similarly memorials filed by the Petitioner were also rejected on 2.6.1988 and 14.9.1988 respectively.

It was contended on behalf of the Petitioner that from the facts, noticed above, it is evident that the adverse remarks were communicated virtually after 24 months from the date of entry. As per the Circular of the Personnel and Administrative Reforms Department No. 5 CR 10043/76-710 dated 4.1.1977 as also subsequent circulars it was incumbent upon the authorities to communicate an adverse remark within three months of its entry to the concerned Government employee. The delayed communication of adverse entry can not take away the right of a Government employee for consideration for promotion. Reliance was placed to a decision of the Apex Court in the case of Mrs. Y. Theclamma v. Union of India and Ors. AIR 1987 SC 1210. The whole object of communicating the adverse remarks is to give the concerned officer an opportunity to improve his performance, conduct and character. Therefore, failure communication of such adverse entry within the time prescribed would frustrate the whole object and, as such, it should not be taken into consideration. In the above mentioned case, the adverse entry was communicated to the concerned officer after 27 months.

In the instant case, as per the Government''s circular, the communication is required to be made within three months from the date of entry. Although such a provision has not yet been held mandatory but in a given circumstance, the Supreme Court held in the aforementioned case though such provisions are directory, but it does not mean that the directory provisions need not be complied with substantially. In the case before the Supreme Court as per the relevant provision communication was required to be made within a period of seven months, but it was made, in fact, after 27 months. It was, thus, held that the period of seven months can not be stretched to 27 months simply because such a provision was not mandatory.

It was next contended that from a bare reference to the orders, contained in Annexure 2 and 3 to both the writ petitions, it would appear that the authorities have failed to consider any of the grievances of the Petitioner. The orders are quite cryptic, mechanical and no reason whatsoever has been assigned rejecting the representations and memorials. Because from a mere reference to the representations of the Petitioner, it would appear that he had raised several grievances against the authorities, who had recorded the adverse remarks. The Petitioner had also given details of several facts with supporting materials to show that the allegations made, against him were malicious and motivated. Therefore, while rejecting the representations or the memorials, it was necessary for the authorities to examine the grievance of the Petitioner and thereafter, pass a reasoned order. In this regard a reference can usefully be made to a decision of the Supreme Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , whereby, it was held that pubic authorities can not play fast and loose with the powers vested in them and persons against whom detriment orders are made, are certainly entitled to know with exactness as to what they are expected to do or forbear from doing and exactly what order the authority is making.

While denying allegations on the basis of which the adverse entry was made with respect to the year, 1982-83 learned Counsel pointed out that from a reference to letters written by the Superintendent of Police, Dumka as well as the Deputy Commissioner of the same place (Annexure 5 and 5/1) it would appear that in fact, performance of the Petitioner during the relevant year was quite appreciated. But unfortunately certain differences arose with the Superintendent of Police in connection with an investigation of a police case, which was, in fact, registered u/s 457/380 of the Indian Penal Code, but the Petitioner had directed for submission of charge sheet u/s 395 of the Indian Penal Code, whereas the Superintendent of Police in order to help the accused Sri. Pandey, who was a political leader, directed the Petitioner to submit charge sheet u/s 457 and 380 of the Indian Penal Code only. However, the views of the Petitioner were accepted by the Deputy Inspector General of Police and ultimately a final report was submitted u/s 395 of the Indian Penal Code. A bare reference to the representations of the Petitioner, it would appear that all such facts were brought to the notice of the concerned authority but unfortunately nothing was considered. In the writ petition also all these facts have been mentioned including that the Superintendent of Police was himself facing allegations before the Central Bureau of Investigation against his conduct.

In the impugned communication apart from the reference of the above mentioned police case, it has also been mentioned that the behavior of the Petitioner was rough and quarrelsome. It has also been alleged that previously the Petitioner had a quarrel with one of his subordinates i.e. Inspector of Police. Learned Counsel contended that from a bare reference to the copies of the representation, memorial as also the averments in the writ application it would appear that not only such allegations have been specifically denied, rather from time to time the work and conduct of the Petitioner was appreciated by the higher Authorities. But the authorities have neither been able to deny such facts in their counter affidavits nor there was any consideration by the authorities while rejecting the representation or memorial of the Petitioner. Therefore, the Court can safely draw an inference that all such allegations in the impugned communication were made only with a view to deprive the Petitioner from being considered for inclusion in the select list of the Indian Police Service. Because barring those two adverse entries, the service record of the Petitioner throughout his career was found satisfactory, very good and outstanding.

While adverting to the adverse entry for the year, 1983-84, it would appear that Petitioner''s performance at the time when the Speaker of the Assembly had gone to visit Shrawani fair was not found satisfactory. In reply to such allegation, learned Counsel pointed out that from the letter of the Speaker addressed to the Superintendent of Police, Deoghar, as contained in Annexure-2/4, it would appear that in fact he had appreciated the performance of the police officers, who were deputed to look after all the necessary arrangements during the visit at Deoghar. Similar appreciation was also made by the Deputy Commissioner vide his letter addressed to the Petitioner, a copy of which is Annexure-5/1 to the other writ application. It was, therefore, contended that a bare reference to the facts, noticed above, would show that adverse entry with respect to the year, 1983-84 was false and without any substance.

In both the cases counter affidavits have been filed by Respondent No. 8, the Deputy Secretary (Home) Police Department, stating that in order to include the name of an officer in the select list for promotion to Indian Police Service, over all performance is taken into consideration. True it is as per the Government''s circular adverse remarks are required to be communicated within three months, but simply because of the delayed communication, Petitioner would not be entitled to be included in the select list unless his otherwise service records are found satisfactory. But nothing has been said in the counter affidavit to substantiate and support the allegations due to which such adverse entries were recorded nor there is any denial about the facts, which the Petitioner has brought on record to show that all the allegations were false and baseless.

That apart, from the facts, noticed above, it would appear that no explanation whatsoever has been furnished on behalf of the Respondents under what circumstances the adverse entries were communicated to the Petitioner nearly about after 24 months from the date of such entries, whereas in view of the circular of the Personnel and Administrative Reforms Department, Government of Bihar, adverse remarks are required to be communicated within three months from the date of the entry. It has already been noticed that the Apex Court as well as this Court time to time have deprecated such practice and granted appropriate relief''s, ignoring the adverse entries. Reference in this regard can be usefully made to some of the decisions of the Apex Court, namely, Gurdial Singh Fijji Vs. State of Punjab and Others, , Mrs. Y. Theclamma v. Union of India and Ors. AIR 1987 SC 1210, Amar Kant Choudhary Vs. State of Bihar and Others, as also a decision of this Court in the case of Bhagwan Prasad Sinha v. The State of Bihar and Ors. C.W.J.C. No. 5177 of 1989, disposed of on 9.12.1990), whereby and where-under, in a similar case the adverse remark was struck down because of the delayed communication. True it is the time limit of three months for the communication of adverse remark, as prescribed by the Government, is not in a (sic) mandatory. But from a bare reference to the case of State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and Another, , it would appear that having regard to the main object behind the communication of adverse remarks, would certainly frustrate and become meaningless, if such a period is stretched for a long period. In the case before the Apex Court the adverse remark was communicated after a period of 27 months whereas as per the concerned circular such a communication was required to be made within a period of seven months. It was held that a period of seven months can not be stretched to 27 months simply because such a provision was not mandatory.

That apart it is well known that basic principle for communication of the adverse remarks is with a view to accord an opportunity to the concerned employee to improve his work and conduct and to explain any other circumstances leading to such report. The opportunity to the employee either to explain the conduct or to improve the conduct is not a mere formality, rather akin to the rules of natural justice. In the case before me, apart from the delayed communication of 24 months, even the representations filed by the Petitioner to explain his conduct were kept pending at the time of consideration by the Selection Board. It would be relevant to notice that being alive with such a situation Hon''ble the Chief Justice Y.V. Chandrachud in the case of Gurdial Singh Fijji (supra) observed thus:

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 an opportunity is not an empty formality, Its object, partially, being to enable the superior authorities to decide on, on a consideration of the explanation offered by the person concerned, whether the adverse report is justified....

Yet a reference in this connection can also be made to another decision, of the Apex Court in the case of Amar Kant Choudhary v. State of Bihar and Ors. (supra). In that case, the Petitioner who was a Deputy Superintendent of Police, was superseded by the Selection Committee at its meeting in view of the adverse entry in the character roll. The main point urged before the Apex Court was that the Selection Committee had committed an illegality rejecting the claim of the Appellant for being included in the select list in the year, 1976 by relying upon adverse entries, in the confidential rolls, which had not been either communicated to him or against which he had made representation but remained undisposed.

The Court placing reliance on the principles laid down in the case of Gurdial Singh Fijji (supra) held that non-consideration of the name of the Petitioner by the Selection Committee was not proper and fair. Because admittedly the representation filed by the Appellant was pending consideration on the day the meeting of the selection committee was held. Accordingly, the case of the Appellant was allowed with a direction to the Respondents for reconsideration on the question of promotion. That apart, with a view to avoid such contingencies in future, the Central Government as well as the State Government were directed thus:

... In order to avoid such a contingency, the Government may consider the introduction of a system in which the officer who has to make entries in the confidential roll may be'' required to record his remarks in the presence of the officer against whom remarks are proposed to be made after giving him an opportunity to explain any circumstance that may appear to be against him with the right to make representation to higher authorities against any adverse remarks. This course may obviate many times totally baseless remarks being made in the confidential roll and would minimize the unnecessary suffering to which the officer concerned will be exposed. Another system which may be introduced is to ask the officer who records the confidential remarks to serve a copy of such remarks on the officer concerned before the confidential roll is submitted to the higher authorities so that his representation against the remarks may also reach the higher authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation....

The aforesaid system was prescribed with a view to eliminate as far as possible complaints against misuse of the powers by the official superiors, who may not be well disposed towards the officer against whom such action is taken. Thus, keeping in mind the facts, stated above, in my view, not only the delayed communications of the adverse remarks frustrated the case of the Petitioner, rather the representations filed against such adverse remarks were still undisposed on the day of consideration by the Selection Committee. Hence, the Court has no option but to hold that the Petitioner has been denied the reasonable opportunity to explain his conduct. Thus, in view of the authoritative pronouncements of the Apex Court, as noticed above, such adverse entries have to be struck down or ignored for the purposes of consideration of the case of the Petitioner before the Selection Committee.

Apart from what has been noticed above, though representations of the Petitioner as well as memorial were rejected by Annexure 2 and 3, but no reason whatsoever was assigned. I have already noticed that the Petitioner in his representations had specifically denied the allegations and had also made out a case of malafide against the Superintendent of Police. He has also brought to the notice of the Court that apart from those adverse entries throughout the service career, his record was good, very good and outstanding, but unfortunately, nothing was considered. In this connection I have already referred to a decision of the Apex Court in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji (supra), whereby, such action of the authorities was deprecated. It was held that public authorities can not play fast and loose with the powers vested in them and persons against whom detriment orders are made are certainly entitled to know as to what order the authority had made. Because the impugned remarks made by the concerned authority in the shape of adverse entry, are mutually inconsistent with the materials on record, nor there is any denial in the counter affidavits regarding the statement of the Petitioner that the controlling officer had not taken due diligence in making such remarks. In this regard a reference can usefully be made to a decision of the Apex Court in the case of Sukhdeo Vs. Commissioner Amravati Division, Amravati and Another, .

I, therefore, having given anxious consideration of all the facts and circumstances of the case, have no option but to quash the impugned adverse entries as well as the orders, contained in Annexure 2 and 3 to both the writ petitions, whereby, the representations and memorial of the Petitioner were rejected. I further hold since there was unusual delay in communication of such adverse entries and that the representations filed by the Petitioner were still pending, the denial of consideration of his name for selection for the reasons of such adverse entries was not proper.

In the result, therefore, both the writ applications are hereby allowed to the extent indicated above with a direction to the Respondent-authorities to consider the case of the Petitioner for promotion from the day he became eligible, provided he may be otherwise fit for selection. But in the facts and circumstances there shall be no order as to costs.