1. Confidential roll of a Government servant is just like a mirror, which reflects his performance, which is paramount to be considered for progression in the hierarchy of service. Though statutory rules and administrative instructions framed operate the field of writing confidential reports and it is on the basis of a self-appraisal of an officer, which is on the basis of watching the performance of the concerned for a statutory period. A three-tier system of Reporting Officer, Reviewing Authority as well as Accepting Authority has been devised. In nutshell, if the performance of a Government servant is not found 'upto the mark' and any remark, which partakes a character of an adverse remarks, has to be recorded only when a condition precedent of informing the concerned of deficiency in performance of duties is apprised with an opportunity to correct. If it is not so, then the ACR recorded, which lacks in accord of opportunity in case of falling performance would not be admissible in law. Like-wise, the Reviewing Authority has a right to disagree with the recording of remarks by the Reporting Officer to any downgrading or an adversity in the remarks, as compared to the remarks recorded by the Reporting Officer has to be communicated in advance. However, there is no laid down guideline as to recording of reasons in modification of the remarks by Accepting Authority of the remarks by the Reviewing Authority, yet any rule, which does not incorporate a reasonable opportunity or does not have in built principles of natural justice in rule of law, the prior reasonable opportunity has to be implied in it. Like-wise, on adverse remarks, an opportunity to represent and sometimes memorial is also provided. The authority deciding the representation is obligated to apply its mind not only to the good work done but also the adverse remarks on weighing the same with the record available and attached to the CR. This consideration should apparently indicate application of mind, which can only be inferred when reasons are recorded. If the reasons are mandated to be recorded in the order, yet the reasons in file on consideration of representation is the touchstone of valid compliance by the authority disposing of the representation. The aforesaid also holds goods for a disposal of the memorial.
2. In All India Service Manual, unlike the other Central Government Services statutory rules have been framed, i.e., All India (Confidential Rolls) Rules, 1970 (hereinafter referred to as "Rules 1970") laying down the detailed procedure to be followed, including writing of the CR, acceptance and disposal of the representation.
3. The Government of India's instructions issued from time to time on writing of CRs, its maintenance as condition of service of the member of All India Service are also mandatory to be followed and in case of any doubt as to the interpretation, the Central Government is the final authority to adjudicate.
4. In the above backdrop, through an amended O.A., applicant, who is an Indian Police Service Officer of 1986 batch belong to Madhya Pradesh cadre, had been placed in the Central Bureau of Investigation on deputation as Superintendent of Police, Anti-Corruption Branch at New Delhi in April 1996. The remarks recorded in his CR for the financial year 1.4.1998 to 31.3.1999 communicated on 2.2.2000, in the first part of the order relate to advisory remarks and the adverse remarks, as recorded by the Accepting Authority, have been communicated as under: 1. Your performance during the year was found characterized by lack of interest in work, commitment to duty and inclination to improve.
Your quality of work leaves much to be desired. Despite of oral and written warnings you failed to register any improvement. It is hoped that you would turn a new leaf for your own sake.
2. Shri Anil Kumar is advised to improve himself to the professional competence and take interest in your assigned duties. He may represent against the above advisory/adverse remarks to Secretary to the Govt. of India, MHA, New Delhi within 45 days on receipt of this O.M., if he so desire.
5. Against the aforesaid remarks, applicant preferred a detailed representation alleging malafides against respondent No. 4 - Shri P.C.Sharma, the then Director, CBI.6. By an order passed on 1.1.2001, adverse remarks have been maintained by the rejection of representation with the following observations: That following adverse remarks were recorded in the ACR Anil Kumar, IPS (MP:86) for the period 1.4.98 to 31.3.99.
"Your performance during the year was found characterized by lack of interest in work, commitment to duty and inclination to improve.
Your quality of work leaves much to be desired. Despite of oral and written warnings you failed to register any improvement. It is hoped that you would turn a new leaf for your own sake." 2. That Shri Kumar submitted a representation addressed to the Secretary, Govt. of India, praying for expunction of the adverse remarks.
3. That after careful examination of the relevant records, submission made by Shri Kumar and the CBI's comments thereon, the Govt. of India have come to the conclusion that the above remarks recorded in the said ACR is well reasoned and factual.
4. And, therefore, Shri Kumar's representation to expunge these remarks is hereby rejected.
7. The memorial filed by the applicant was forwarded to the President and was turned down by an order passed on 21.5.2002 with the following remarks: Whereas the representation against the adverse remarks recorded in the ACR for the period 1998-99 of Shri Anil Kumar, IPS (MP:86), was rejected by the Government of India vide Order No. 17033/1/2000-IPS.II dated 1.1.2001.
2. And whereas Shri Anil Kumar, IPS submitted a Memorial to the President of India praying for the expunction of the adverse remarks from his ACR for the period 1998-99 under AIR (Discipline and Appeal) Rules, 1969.
3. And whereas the Central Government considered the said Memorial under Rule 25 (4) of AIS (Discipline and Appeal) Rules, 1969 and the relevant rules of AIS (Confidential Rolls) Rules, 1970, and found that these remarks reflect the true and fair evaluation of his performance during the period under report.
4. Now, therefore, the President is pleased to reject the Memorial and retain the adverse remarks in the ACR of Shri Anil Kumar, IPS for the period 1998-99.
8. Before we dwell upon the rival contentions of the parties, it is relevant for proper adjudication of the present controversy to have some reference and reproduction of the provisions of CR Rules of 1970 ibid.
9. Rule 4 of the Rules 1970 provide the form of confidential report, as specified by the Central Government and the performa is provided under the rules for Junior Administrative Grade, Senior Scale and also the Super Senior Scale.
10. Rule 5 of the Rules 1970 provides for a confidential report assessing the performances, character, conduct and qualities of every member of the service shall have to be written for each financial year, or calendar year, by the Reporting Officer and if the Reporting Officer has not seen the performance, it would be written by the Reviewing Authority, failing which by the Accepting Authority, if seen the performance of the reported officer.
11. Rule 6 of the Rules, 1970 provides for review of the confidential report. Rule 6-A of the Rules, 1970 brings jurisdiction of Accepting Authority, which provides as under: 6-A Acceptance of the confidential report.--(I) The confidential report, after review, shall be accepted, with such modifications, as may be considered necessary, and countersigned, by the Accepting Authority, ordinarily within one month of its review: Provided that this requirement may be dispensed with in such case as may be specified by the Government, by general or special order: Provided further that where the Accepting Authority has not seen the performance of any member of the service for at least three months during the period for which the confidential report has been written, it shall not be necessary for the Accepting Authority to accept any such report.
Note.- An entry to this effect shall be made in the confidential report.
(2) Notwithstanding anything contained in Sub-rule (1), it shall not be competent for the Accepting Authority to accept and countersign any such confidential report: (a) where the Accepting Authority is a Government servant, after he retires from service, and 12. If one has regard to the above, the remarks recorded by the Reporting Officer as well as Reviewing Authority are to be accepted with such modification, as considered necessary by the Accepting Authority. Rules 7 and 8 of the Rules provide for communication of adverse remarks. It is made clear in these rules that where the Accepting Authority records the adverse remarks, he shall have to record a note to the effect that the remarks are adverse remarks.
However, it is for the Central Government ultimately to examine whether the remarks recorded in the confidential report of the member of the service are adverse remarks or not.
13. Rule 9 of the Rules, 1970 provides for a representation against the adverse remarks and Rule 10 provides consideration where either rejection, toning down the remarks or expunging the remarks are the three options available for the authority dealing with the representation.
14. As per the proforma under Rule 4 ibid, as an Executive instruction under Rule 10-A of the Rules, 1970 lays down format of writing of the confidential report and Part-IV where the remarks of the Accepting Authority are to be accorded as per MHA Office Memorandum dated 21.6.1985 provides that where an adverse entry is made by the Accepting Authority, whether it relates to a remedial or to an irremediable effect, it should be communicated but while doing so, the substance of the entire report, including what may have been said in praise of the officer reported upon should be communicated.
15. In the aforesaid proforma, any corrective measures taken and in that course, memo, warning, advisory memos and explanations are to be attached with the character roll.
16. In the light of above, the respondents have produced the CR folder of the applicant, including the file relating to consideration and disposal of his representation against the adverse remarks as well as disposal of the memorial.
17. Any remarks, which are advisory in nature entered in the character roll of the member of the All India Service, would not be adverse.
However, as per Rule 8 of the Rules, 1970, an adverse remark has been defined a remark, which indicates the defects or deficiencies in the quality of work or performance or conduct of an officer, but it does not include any word or words in the nature of Counsel or advice to the officer. The ACR of the applicant impugned in the first part finds mention of advisory remarks, which cannot be treated as an adverse.
This left with only adverse remarks recorded in disagreement by the Accepting Authority where there has been a conclusion as to lack of interest in work and commitment to duty and quality of work desirable.
This has been concluded on the basis of oral and written warnings given to the applicant and his failure to register any improvement thereafter.
18. Mr. S.K. Sinha, learned Counsel for applicant, at the outset, alleges malafide against respondent No. 4 Shri P.C. Sharma, the then Special Director, CBI by contending that during the reported period, applicant's disposal and its target was achieved and he had never been communicated any defects in his functioning or performance, it is categorically denied that the applicant had received any advisory memo, warning or explanation but it is stated that P.C. Sharma - respondent No. 4, who has recorded certain observations were kept in the file without communication to the applicant.
19. Learned Counsel would contend while establishing the malafides that RC-47(A)/ 97-DLI a case was registered against one Shri S.P. Singh, a Senior Officer of Indian Audit and Account Service in relation to purchases made in Municipal Corporation of Delhi, who was one of the accused persons, known to Shri P.C. Sharma, whereas the applicant had no role in initiation, search and registration of FIR, which has been executed by his predecessor, yet when it transpired to the applicant that forged bills were signed by Shri S.P. Singh, who was due for promotion, Shri P.C. Sharma approached in the light of forgoing promotion of Shri Singh to close down the case and to this regard when a meeting held with Director, CBI regarding general assessment of the work progress, the involvement of Shri Singh was substantiated and this led to the wrath of Shri Sharma, who having an opportunity to work as an Accepting Authority, as the applicant has refused to give a closure report in respect of Shri Singh without any basis, recorded the adverse remarks, which are in disagreement with the Reporting Officer and Reviewing Authority and not founded on any reasonable basis or grounds.
20. Learned Counsel would contend that a bald statement without indicating any specific instance of the applicant in his fallible performance have been quoted, which is not the valid compliance of the rules.
21. Learned Counsel would further contend that though the rules and instructions do not stipulate in disagreement of Accepting Authority a prior opportunity to show cause, yet if the downgrading by the Reviewing Authority is to be communicated by implication of law, the same would mutatis mutandis apply to the Accepting Authority as well as whenever adverse inference is drawn against a Government servant, which is not preceded by any due opportunity or indicative of unsatisfactory performance before any consequence follow upon the Government servant, are to be communicated, which is even if not provided under the rules, is implication of rule of audi alteram partem contained in the cardinal principles of natural justice, which shall not be excluded from its application in a particular rule and would be implied in it.
22. Learned Counsel would also contend that representation of the applicant has been turned down without application of mind, as though the applicant has given all the particulars of his achievements during the reported period and has also raised malafides against respondent No. 4, yet the order on representation, on the face of it, is non-speaking and on perusal of the record by the Court, it would transpire that no consideration has been put forth to his contentions.
As such reiterating that the order on memorial also suffers from the same infirmity. With the aforesaid, learned Counsel seeks expunction of the adverse remarks and grant of all consequential benefits.
23. In the course of arguments, learned Counsel for applicant has relied upon catena of decisions; one by the Bench of the Tribunal at Bombay in S.S. Mishra v. Central Board of Direct Taxes and Ors. 1994(3) SLJ 238 where it has been held that in the matter of ACR and adverse entries, which are without any supporting data, the same, even if it is advisory, cannot be recorded without following the procedure and unsapported entries without data cannot stay.
24. Learned Counsel for applicant has also reiterated that no memo, warning, etc., has been communicated to the applicant and has relied upon the decision of the Apex Court in State of U.P. v. Yamuna Shanker Misra and Anr. to substantiate his contention by stating that if one is not accorded an opportunity to improve upon in the form of memos, etc., any authority, which records the adverse remarks, is displayed callousness and non-application of mind.
25. On the other hand, on production of departmental records, Mr.
Rajinder Nischal, learned Counsel for respondents vehemently opposed the contentions and contended that whenever an officer does an excellent job, is appreciated, as the applicant was appreciated by immediate superior on the work done upto 31.3.1998. However, as he lost interest in work and the Accepting Authority, who does not agree with the remarks and grading of 'Very Good' given to the applicant found that the applicant has not improved and with a jurisdiction to record on modification reasons in the light of the memos, etc., accorded to the applicant, the conclusion arrived at cannot be interfered in judicial review by the Courts on assuming the role of an Appellate Authority.
26. However, it is stated that the ground malafide against respondent No. 4, to which the learned Counsel for official respondents makes a statement that he is defending respondent No. 4 also, contended that malafides have not been established to his hilt and are merely on the ipsi dixit of the applicant. It is also stated that the same is not based on any evidence as everybody in CBI is independent to give his own opinion and one is never pressurized to give a specific report.
27. Learned Counsel further stated that the adverse remarks have been recorded as per DOPT Office Memorandum dated 5.6.1981, which do not suffer from any legal infirmity and prays for dismissal of the present O.A.We have carefully considered the records produced by the respondents as well as the submissions advanced on both sides.
28. While evaluating performance of a Government servant, the only mirror to reflect is his confidential reports. It is not that a Government servant would not fallible in performance in a particular year. If one performs diligently to his utmost capability, he is suitably rewarded by the higher grading in the confidential report, yet in another year, when he does not perform 'upto the mark', the grading is toned down. However, if the grading consistently obtained by an officer is of a highest nomenclature, then a presumption would have to be drawn that the officer had been consistently performing well and if in a particular year he falls in his performance, nothing precludes in a judicial review with the underline principle of objectivity writing the ACR to go into the circumstance as to the recording of adverse remarks.
29. In the above backdrop, the erstwhile performance of the applicant till his impugned ACR has been written, clearly shows that either he has been graded 'Outstanding' or 'Very Good'. Period pertaining from 1.4.1998 to 31.3.1999 whereas the self-appraisal filled by the applicant has been commented upon by the Reporting Officer, yet nothing in the remarks recorded shows anything out of adverseness. Accordingly, an advisory note recorded the general remarks still on certifying integrity were 'Very Good' as to the overall work and conduct. The Reviewing Authority accepted the remarks as well as grading.
30. No doubt, under the Rules of 1970 ibid, the Accepting Authority would not act as a rubber stamp by only counter signing the remarks or the grading but is at liberty on modification to record his reasoning and once it is adverse, the same has to be indicated as such. However, the objectivity in writing and the reasons recorded for such adverse remarks, which, according to the instructions contained in the confidential roll, clearly envisages that good points as well as bad points are also to be incorporated and in the event the adverse remarks are given, the factual matrix in brief has to be incorporated to substantiate. In the light of above, the Accepting Authority in the present case was of the view that both Reporting Officer as well as Reviewing Authority on ignorance of the fact regarding performance of the applicant have not made an incorrect factual objective assessment.
This has been substantiated on the ground that as per the records, the applicant was warned orally and in writing number of times in the past, having failed to register any improvement was graded as 'Average'.
31. Insofar as the fact of communication of oral and in writing the shortcomings in the performance of the applicant is concerned, I find that the applicant has categorically denied the aforesaid in his O.A.in Para 4.5 and ground 5 (H). The respondents in their reply to this effect have not specifically rebutted the aforesaid contentions and rather I find that in response to Para 5 (H), what has been given is that there is no rule to give opportunity to officer concerned before any remarks. It is, however, oblivious of the particular pleadings in the aforesaid paras.
32. It is trite that once the fact is averred in the pleadings, for want of specific rebuttal, the same stands admitted and established as well. However, in the interest of justice, I have also gone through the ACR of the applicant where as per instructions of 1978 and 1979 issued by the MHA, any such defects when communicated in the shape of memos, warnings, explanations, etc., are to be attached with the CR. I do not find any such attachment, rather I find an appreciation accorded to the applicant in the course of performance of duties. In such view of the matter, it is safe to legally presume that the adverseness in the remarks of Accepting Authority as to the oral warning, which has sanctity or recognition in law as well as written warnings, are described on his whims and fancies but are non-existing on record. As such, the basis of adverse remarks recorded on acceptance by the Accepting Authority are baseless and without any reasons as the only lack of performance, which has not transpired from the comments of the Reporting Officer and Reviewing Authority and the overall work and conduct has been found 'Very Good'. the adverse remarks cannot be sustained in law.
33. The Apex Court while meticulously discussing the above aspect of the matter in Yamuna Shanker Misra's case (supra) ruled 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 every 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 conditional reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on 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.
34. If one has regard to the above, it is incumbent and obligated upon the authority recording adverse remarks to foresee as a condition precedent if the performance of a Government servant is falling to give him an opportunity to reform and to correct himself on improvement and thereafter despite giving an opportunity, if one fails to amend, the remarks would be justifiable. However, I find from the pleadings in the O.A. that there has been a reference of warning made by Shri P.C.Sharma in some files but the fact that these corrective measures having not been put to the applicant and given shape of corrective measures, cannot be construed as a valid compliance of the rules.
35. Though I admit that in the matter of recording CR in a judicial review, the Tribunal would not step into the shoes of administrative authorities but in rule of law when the remarks on the face of it are not justifiable and an incorrect version has been incorporated to support the remarks, which is non-existent, then at least legal malafidesare to be inferred. Malice in law is acting with caprice, arbitrariness in utter derogation of rules and highlighting an adverse material, which is either non-existent or is not supported by justified reasoning.
36. Another legal lacuna, which has vitiated the remarks recorded by the Accepting Authority, is an infraction to the principles of natural justice. In the matter of promotion within the hierarchy of grades in All India Service, CRs play an important role. It is a tool to assist the Selection Committee to arrive at a finding of fitness of a member of service for his further progression in his service career. The Apex Court in State of U.P. v. Narendra Nath Sinha 2002 (1) ATJ SC 118 with a situation where though the Reporting Officer graded the reported officer as 'Good', 'Excellent' but this has been toned down to 'Satisfactory' by the Reviewing Authority, it was held that non-communication of a prior reasonable opportunity of the adverse remarks on disagreement is an infraction to the principles of natural justice.
37. If the aforesaid view and the ratio decidendi of the Apex Court applied in case of a disagreement between the Reporting Officer and the Reviewing Authority, the same holds mutatis mutandis good also in case where there has been a downgrading even at the stage of acceptance by the Accepting Authority, as the CR would not be complete, unless it is accepted by the Accepting Authority in case of adverseness to be communicated and otherwise be kept in the record.
38. The basic thrust is that when performance as per the officer, who is immediately above the reported officer and is in a position to observe the functioning the concerned and in a position to evaluate his work records a higher grading in the performance, especially in the case of Accepting Authority, who is also an authority in the hierarchy but is not in direct supervision as an authority watching the performance, it becomes more important when it disagrees on an issue to have afforded an opportunity to the concerned before the ACR is made adverse. Principles of natural justice, though cannot be put in the straight jacket formula, yet its applicability, more particularly the principles of audi alterampartem, is the condition precedent before any adverse material is concluded and acted against a Government servant.
Though CRs under Rules, 1970 ibid do not prescribe such an opportunity, yet by implication of law and also as an implied applicability of principles of natural justice, such an opportunity was a condition precedent. It is with a view to afford an opportunity to the concerned when he has is not aware, as on disagreement he has been rated adverse, to effectively defend. The paramount importance of communication of disagreement is that these CRs form basis of consideration of a person for promotion, on denial of which one faces civil consequences, which cannot be ensued without according a reasonable opportunity. In such view of the matter, though in Narendra Nath Sinha's case (supra) the ratio applies on disagreement by Reviewing Authority but in principle, it extends to Accepting Authority when consistently two lower rungs have given a grading, which has been toned down to adverse.
39. One of the grounds raises is non-consideration of representation preferred against the remarks by the applicant. At the outset, I may reiterate that reasons are not necessary or obligatory to be recorded in the order but if on perusal of the record where such a consideration has taken place divulge reasons, there is no infirmity in consideration. In the matter of recording reasons, a Single Bench of the Guwahati High Court in Pawan Kumar Tiwari v. Union of India and Ors. 2006(3) SLR 63 on a meticulous discussion of the case law arrived with the following finding: 9. In view of the foregoing analysis it becomes apparent that report which is annually recorded in confidential record have some purpose.
In fact, the performance of an employee, the opinion about his individuality, personality, status and role played, work, action performance, activities attitude, devotion, diligence, honestly, integrity, faithfulness of an employee has to be assessed confidentially. Three aspects arise which are relatable while recording a confidential report. Firstly, the person or an employee in whose matter the confidential report is being made, the same has to be and fairly assessed. Secondly, the person and his qualities making assessment or a report and thirdly, the criteria or parameter of evaluation.
10. Confidential and character reports should be written by superior officers objectively, impartially without any prejudices. Such Annual Confidential Report has to be recorded with confidentially and with two folds objectives i.e., firstly to give an opportunity to the officer concerned to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality excellence and efficiency of officer for public service. Sometimes the (ACR) is called or acknowledged as character roll entry where the characteristic of an individual values as a human being relatable to morality preserve in him once personality is also assessed relatable to the work assigned and post held by him.
'Moral' and 'Morality' connote the entire virtues of human being, in short justice, discipline, self-control, tolerance, benevolence, generosity, honestly, compassion, devotion to duty and willingness to self-sacrifice one's own interest and benefit for the welfare of people or society. All these virtues cumulatively may be taken as covered in 'morality'. It may also be said that these virtues are essential components of 'good conduct' and collectively known as 'morality', the basic foundation of good personality of an individual human being or person may also be kept in mind while making 'ACR' of an employee.
11. Therefore general conditions could be enumerated while making confidential report as follows: (i) The maintenance of character rolls is not enjoined by any statute or rules framed under Article 309 of the Constitution.
Principles regarding record of confidential reports and communication of adverse remarks have been laid down in administrative instructions issued from time to time. The circular if any applicable at a particular point of time is to be followed in its entirety.
(ii) The character rolls are maintained primarily for the benefit of the State Government. Where the Government is the matter has to make its own estimate or the assessment about the caliber of its servants or employees so as to derive their talents for the purpose.
(iii) The instructions prescribe guidelines for the officers for making assessment of the worth and caliber of their subordinates.
(iv) The circulars of State bind the department under the administrative control of the State Government and not binding on the members of the subordinate Judicial Service under the administrative control of the High Court under Article 235 of the Constitution.
(v) Since the action is taken on the basis of remarks in the character roll in the matter of allowing crossing of efficiency bar, promotion, supersession or reversion etc., therefore the adverse entries affect the service prospects of an employee and have civil consequences.
(vi) At the time of record of confidential report the employee is not entitled to any hearing.
(vii) It is only after the record of confidential reports and the communication thereof, an employee is to be given an opportunity to make a representation against the adverse entry.
(viii) The time prescribed in any circular for communication of adverse entry is not mandatory but directory. If the adverse entry is not communicated in time, it is no wiped out.
(ix) If the employee does not make a representation against the adverse entry after communication, it becomes final.
(x) The character roll can be acted upon before final disposal of the representation. There is no provision in the administrative instructions that action would await the final disposal of the representation. Such a view would militate against exigencies of public service.
(xi) If representation is ultimately rejected, the action taken on the basis of the confidential report would stand.
(xii) If on representation, the adverse entry is set aside or substantially modified the case is to be reconsidered and earlier action taken on such adverse entry is to be quashed if different view is taken on reconsideration and retrospective benefits are to be conferred.
(xiii) If the adverse entry is not communicated at all for an unusually action is taken on the basis of the adverse entry, a Government servant can ask for an appropriate writ directing the Government to communicate the adverse entry and to dispose of the representation, if any. In appropriate cases depending on facts and circumstances, adverse action taken against the Government servant may liable to be quashed.
(xiv) An adverse entry made in the A.C.Rs. in contravention of the instructions relating to that entry it is non est in the eye of law.
(xv) While making confidential reports mentioned of specific instances are not necessary however, if such remarks contain a slur on the character and conduct of the officer, the concrete instances should be given.
(xvi) While recording the down grading of assessment the reasons are to be recorded in personal file and down grading is to be communicated in the form of an advice to an employee.
(xvii) Making of adverse entry in the confidential report is not equivalent to imposition of a penalty which would necessitate an inquiry or affording a reasonable opportunity before making it.
(xviii) While making communication of adverse entry the basis on which the adverse entry was founded must also be communicated.
(xix) While rejecting the representation against the adverse entries even if reasons not communicated but must be there on the file.
(xx) The adverse entries can be acted upon even if not communicated unless malafide on the part of the authority can be shown.
(xxi) The guidelines and observations of the Supreme Court in Amar Kant Choudhury, (supra) have to be kept in consideration by the State Government or by the instrumentalities of the State or authorities of State of Corporation to avoid delay and consequent inconveniences arising from the present system relating to representations against adverse entries.
40. In the light of above, I have perused the file relating to consideration of representation of the applicant against adverse remarks. At the outset, I may like to point out that as on production of these records, as the respondents have not claimed privilege, accordingly the factual matrix, which has transpired on perusal, can be safely referred to in my observation.
41. On a representation keeping in light the outstanding remarks communicated to the applicant from 1996, except the adverse remarks, a proposal has been made in the light that once the outstanding remarks exist, the reasons of applicant in qualitative aspect does not forth come, a proposal was made to expunge the remarks. However, on disagreement by one of the functionaries in the hierarchy only on the basis of oral and written warnings issued to the applicant, the authority on deciding the representation was of the view that despite written warnings, the applicant having not improved himself, has shown lack of interest.
42. At the outset, I am of the view that there has been absolute lack of application of mind and rather with a closed mind, the representation had been turned down with a reasoning, which does not subscribe to its logic and rationale. Any reasoning arrived at on an incorrect position would not be countenanced in law. As there are no written warnings, which had been communicated to the applicant, though may be recorded (of which no record is available), cannot be acted to the detriment of the applicant or found basis of sustaining the remarks.
43. In the file pertaining to representation, there has been an observation of the authority as to the omission of the applicant of not bringing the progress of various cases investigated to the notice of higher authorities. In this view of the matter, I have seen the representation preferred by the applicant against the adverse remarks.
In this representation, the applicant has not only highlighted the targets and achievements but also given an account of the targets completed and the information submitted in the form of final proposal to the Competent Authority for concurrence. In such view of the matter, I am of the firm view that the authority has not even bothered to peruse the representation of the applicant and on his ipsi dixit recorded such a finding.
44. As a quasi-judicial authority or even administrative authority, a functionary on administrative side, when acts in discharge of its entrusted duties, no doubt, the exercise has to be on a discretionary power vested in the authorities, yet it has to be exercised in a judicious manner. The Apex Court in Union of India v. Kuldeep Singh , insofar as discretion in exercise by public In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of other.
Discretion is the discern between right and wrong; and, therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rule of reasons and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to have confined himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discrete.
45. If one has regard to the above, when the discretion has not been exercised according to the rules and is oblivious of the factual position, the same cannot be termed as a judicious exercise of discretion and if it is not such, whatever has been exercised is at the whims and fancies, cannot stand scrutiny of law. In such an event, it can be safely concluded that the authorities disposing the representation without application of mind and without recording reasons even on files, which are apt, adverted to an illegality, which vitiates the order.
46. Insofar as memorial is concerned, the disposal of which is also based on the above consideration shows non-application of mind and culminated into a non-reasoned order. This cannot be countenanced in law.
47. Having regard to the above reasons, I am of the considered view that the adverse remarks, as advisory remarks are not to be treated as adverse in the CR of the applicant, are not legally sustainable.
48. In the result, O.A. is allowed. Adverse remarks recorded and communicated to the applicant are set aside. Respondents are directed to expunge the same from the CR of the applicant. These remarks shall not be acted in any manner adverse to the applicant. Orders passed on representation as well as on memorial are also set aside. Applicant shall be entitled to all consequential benefits. No costs.