Judgment:
K.C. Agrawal, C.J.
1. This writ petition under Article 226 of the Constitution has been filed by A.K. Gupta challenging the order of dismissal of his appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as the Tribunal)
2. The petitioner and respondent No. 4 were appointed as substantive Sub-Engineers (Mech.) in the Public Works Department, Jaipur. Respondent No. 4 was senior to the petitioner. The petitioner and respondent No. 4 were considered by the Departmental Promotion Committee for regular promotions to the post of the Assistant Engineers (Mech.) but on account of adverse remarks in the Annual Confidential Report, 1973-74 of respondent No. 4 he was not given promotion against the vacancies of the 1976. As a result of the adverse remarks the petitioner superseded respondent No. 4 and obtained promotion on 25th December, 1976.
3. On not being promoted, respondent No. 4 preferred a representation to the Chief Engineer, which was allowed and the adverse remarks which disentitled him for promotion was expunged by an order of the Chief Engineer. As a result of expunging of the adverse remarks of respondent No. 4, he was given promotion as against the vacancies of the year 1976 and the petitioner was brought down to the vacancies for the year 1979. The petitioner preferred an appeal before the Tribunal and raised number of grounds. The appeal was rejected by the Tribunal vide order dated 5.8.1991.
4. Aggrieved, the petitioner has filed the present writ petition.
5. Shri R.N. Munshi argued before us with great ability urging that the appeal of the petitioner had been wrongly rejected and further the respondent No. 4 was given promotion. The Chief Engineer had no jurisdiction to expunge the adverse remarks given to respondent No. 4. The adverse remark given to respondent No. 4 was that he was most insincere, irregular and negligent. The adverse remarks could not be expunged without there being sufficient material on record to controvert the same. He also contended that the order, expunging the adverse remarks of respondent No. 4, being behind the back of the petitioner and without giving any opportunity to him, was nullity. He further contended that the principle of natural justice which had taken its roots in the matter of service jurisprudence could not be expunged without hearing the petitioner.
6. We are of the opinion that the argument of the learned Counsel for the petitioner is unsustainable.
7. It is true that blurring of the dividing line between quasi judicial and administrative order pointed out in A.K. Praipal v. Union of India : [1970]1SCR457 and Meneka Gandhi v. Union of India : [1978]2SCR621 has no effect. But if the authority bonafide, is of the opinion that the adverse remark was not sustainable from the record and was unwarranted, the correctness of that opinion cannot be challenged before this Court. It is open to an aggrieved party to contend that the requisite opinion had not been formed or that the decision was arbitrary but the High Court would not examine the matter as an appellate court. It may, if that is possible, the order is passed (i) malafide or (ii) that it is based on no evidence or (ii) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material, in short, if it is found to be a perverse order.
8. Learned Counsel for the petitioner argued that the order expunging the adverse remarks made against the respondent No. 4 was perverse in as much as there was no basis or ground on record to come to that finding. He urged that as a result of the order of the Chief Engineer respondent No. 4 was promoted to a higher post notwith standing the adverse remarks, such remarks lose sting because of its unjustified expungting. He further urged that on account of expungting of adverse remarks made against respondent No. 4 the petitioner has not only become junior to the said respondent but also his chances for promotion are affected. He placed reliance on a decision in Lakhi Ram v. State of Haryana : AIR1981SC1655 , which is to the following effect:
It is not correct to say that an officer is not entitled to complain against the expunging of adverse remarks made in the confidential report of another officer, because the effect of expunging of adverse remarks in the confidential report of the latter is to prejudice the chances of promotion of the former and if the former is able to show that the expunging of the remarks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of the Officer concerned and that would improve the chances of promotion of the Complaining Officer vis-a-vis the other respondent No. 6
9. Counsel for the petitioner urged that he has a right to challenge the expungting of adverse remarks made against respondent No. 4.
10. According to law laid down in the aforesaid case the petitioner was entitled to show that the Government acted beyond its power in expunging the adverse remarks in the Confidential Report of respondent No. 4. The entitlement to the petitioner to challenge the expungting by itself does not establish that the adverse remarks made against the respondent No. 4 was justified. On examination of the record the Chief Engineer found that the same was untenable and is liable to be expunged. This was within its power. The learned Counsel for the petitioner could not show that the expungting was malafide. We are unable to hold that the order expunging the adverse remarks of respondent No. 4 was vitiated.
11. We may note that under Article 226 of the Constitution this Court exercises its supervisory jurisdiction and not appellate. It could interfere only when the error of law is apparent and that should be of law. In the following cases, it has been held that the order of the Tribunal has been vitiated by an error apparent on the face of record:
(i) Where an administrative tribunal misread the provisions of an agreement, ignoring their very object on which two views were not possible and based its decision thereon.
(ii) Where the decision is, on the face of record, based on no evidence at all (Kaushalya v. Bachittar : AIR1960SC1168 ) or not warranted by the findings arrived at.
(iii) Where the tribunal made a patent error in interpreting the statutory provision. It is not within the jurisdiction of the High Court dealing with writ petitions to make assessment of evidence itself and reach to its own conclusion in matters which have been left by the legislature.
12. In such cases mistake could not be administered and found by wrong process of reasoning. After seeing the record the Chief Engineer found that the adverse remark was unjustified. This Court cannot sit in appeal over the decision of the Chief Engineer. The appellate machinery is more appropriate than judicial review. The judicial review is recognised as being swift means of fact need not be resolved by seeking redress.
13. In 'Judicial Remedies in Public Law' by Sweet & Maxwell, the distinction between appeal and judicial review has been brought about in the following words:
A more traditional distinction is that between appeal and review. Appeal deals with the merits of the case whereas review deals with the legality of the exercise of power. Appeal may frequently be wider than review and the appellate body may be able to look at facts, opinion and policy where a reviewing court would not. Appeal will be more appropriate where such questions are interwoven with issues of law, since all such issues may be dealt with by the appeal body whereas a reviewing court would be limited to correcting error of law. Some complaints raise questions of law. Here, the area of overlap between appeal and review is now great, as potentially all errors of law are reviewable.
14. Learned Counsel for the petitioner contended that the Tribunal committed an error in finding that the representation had been sent by the petitioner to the Chief Engineer on the date noted by it in its order. He made herculean effort to satisfy us for holding that the Tribunal erred grossly in giving the finding against respondent No. 4. In our opinion the submission of the petitioner's counsel is not sustainable. The Tribunal has given cogent reasons for the view taken by it. Counsel showed us certificate of postings of letters and attempted to distinguish one with the other by asserting that the same were fake and forged. The Chief Engineer accepted the representation having not been filed within time. No malafide motive has been attached to him. We cannot hold the filing of the representation to have unbelated. We have to read the order of the tribunal as it is without inserting any words into it. If we do so the only conclusion drawn can be that there is no mistake apparent in the same and that the tribunal drew the proper inference as against which no action could be taken.
15. Lastly, learned Counsel for the petitioner make a hectic effort to satisfy us that the State committed a mistake in calculating the vacancies which were available in 1976. On correct determination counsel urged that the petitioner as well as respondent No. 4 could be accommodated and in that event the petitioner would not be suffering on account of erroneous order passed by the Chief Engineer. His submission was that the petitioner could be adjusted against the vacancies of 1976 and not against 1979 as was ultimately done. He contended that there were two additional posts of Assistant Engineers lying vacant which were not included while determining the vacancies for the year 1976. He further contended that the respondent No. 4 did not submit his representation against the adverse entry within the time allowed and as such, the Chief Engineer had no power to expunge the same. This point had been raised before the Tribunal and was negatived by saying:
Before passing the orders of expungting, the Chief Engineer was satisfied that the representation had in fact been submitted by the respondent No. 3 against the adverse entries contained in his ACR of 1973-74 in time and that the same could not be dealt with and disposed of on merits for no fault of the respondent No. 3, We do not see any reason to interfere with the decision of the Chief Engineer in this behalf. Once having come to the conclusion that the representation of the appellant had remained undisposed of, it was incumbent on the Chief Engineer to have applied his mind and take a decision.
16. We have examined the argument of the learned Counsel for the petitioner and are unable to hold that the Tribunal committed any error in rejecting the appeal filed by the petitioner before it. The Tribunal's view was that the petitioner could not establish that the vacancies available for the year 1976 were as many as it could accommodate him as well as respondent No. 4. The State contested the claim of the petitioner before the Tribunal and denied it. This Question was one which had to be determined on appreciation of evidence. Sitting under Article 226 of the Constitution we could not do so.
17. Learned Counsel for respondent No. 4 was right in submitting that the forgery in procuring the certificate of posting, as pleaded before us, was not the subject matter before the Tribunal nor was it argued. We find substance in this submission. It was also argued by him that the petitioner since not impleaded in the list of officers who were selected in between 1976 and 1979, the petitioner was not entitled to obtain any relief under the present proceeding as the same was bound to effect them as well. No satisfactory reply was given by the petitioner's counsel. What was urged by the petitioner's counsel was that even if they had not been impleaded it is likely to effect by the judgment of the High Court, they did not debar this Court under Article 226 to grant proper relief to the petitioner. As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is brought to its notice. That proposition of law submitted by the petitioner's counsel is untenable but if some times who has not been impleaded is contemned unheard of, that would be under a technical and narrow procedural grounds. The decision, based on information gathered of the party affected without giving him an opportunity, is opposed by the principle of natural justice.
18. For the reasons given above, the writ petition fails and is rejected. Parties shall bear their own costs.