Raghuvendra S. Rathore, J.
1. In this writ petition, the petitioner has sought to challenge the orders dated 8.9.1998 and 14.10.1998. He has also prayed for expunging the adverse remarks in the. Annual Performance Appraisal Report, in short (APAR) of 1994-1995 and that all consequential benefits be ordered to be given to him since then. Further it has been prayed by the petitioner that the Departmental Promotion Committee (hereinafter, referred to as 'The DPC) held on 23.11.1995, be reviewed and after ignoring the adverse remarks recorded in the APAR in the year 1994-1995, he may be considered for promotion with all other consequential benefits w.e.f. 23.01.1996, the date from which the non-petitioners had been promoted.
2. On having been selected and recommended by the Rajasthan Public Service Commission, the petitioner was appointed as a Member of Rajasthan Police Service, on 29.11.1982. In the order of appointment, the name of the petitioner appeared at S. No. 10 and that of non-petitioner No. 5, appeared at S. No. 11. In the consolidated seniority list of junior scale of Rajasthan Police Service as on 1.7.1987, issued on 30.06.1990, the name of the petitioner appeared S. No. 114 and the names of other junior persons appeared from S. No. 115-128 (Annexure-1).
3. Under the relevant Rules; namely the Rajasthan Police Service Rules, 1954 the lowest post is that of Deputy Superintendent of Police, which is in junior scale. The next higher post, under Rule 28-A(5) read with Schedule of the Rules of 1954 is that of Additional Superintendent of Police (Senior Scale), which is a promotional post to be filled up by 100% promotion on the basis of seniority-cum-merit from the post of Deputy Superintendent of Police, with at-least five years experience.
4. The petitioner had fulfilled the requisite qualifications for promotion, on completion of five years service in the month of December, 1987 but his turn came up for consideration for promotion, against the vacancies for the year 1995-1996. The DPC was to meet on 23.11.1995 for considering the promotion from the post of Deputy Superintendent of Police to that of Additional Superintendent of Police, in senior scale for the year 1995-1996. Though, the petitioner was not communicated any adverse remarks in his APAR for the last five years, but he came to know from his own sources that the Superintendent of Police, Kola and Deputy Inspector General of-Police, Kota had entered some adverse remarks in his APAR for the year 1994-1995.
The petitioner then gave a representation on 22.11.1995, informing the DPC about his apprehension that in the APAR of 19941995, S.P. Kota and D.I.G. Kota may have made certain adverse remarks against him. The petitioner had also given copies of the said representation to the Members of the DPC. He had made a request in his representation that the adverse remarks in the APAR be ignored and may not be acted upon till he is given an opportunity to make representation against such remarks and the same is decided after due hearing.
The DPC did not take note of the fax message/representation and also did not consider the petitioner for promotion to the post of Additional Superintendent of Police, on account of adverse remarks in the APAR. The DPC had met on 23.11.1995 and declared twenty one persons for promotion to the post of Additional Superintendent of Police. The petitioner, before the recommendations could be forwarded and any steps in furtherance thereof be taken by the Department, submitted another representation on 5.12.1995 to the DPC. However, the DPC ignored the representation and sent its recommendation without any modification.
5. After meeting of the DPC, the adverse entries of the APAR of the year 1994- 1995 were communicated to the petitioner on 4.12.1995 and the same were received on 18.12.1995, through the Superintendent of Police, Kota. The petitioner then submitted an interim representation on 20.12.1995, through proper channel, to the Deputy Secretary, Department of Personnel, Government of Rajasthan. A copy of the said representation was also sent to the Chief Secretary, the Additional Chief Secretary-cum-Home Commissioner, Government of Rajasthan and also to the Director General of Police, through proper channel, with the request that he had received the adverse entries in the APAR of the year 1994-1995 only on 18.12.1995 and that he is collecting material for filing a representation. The petitioner had also mentioned that the said APAR is contrary to the facts, malafide, concocted and contrary to the Rules of 1976. Therefore, the said APAR should not have been considered by the DPC.
Thereafter, the petitioner submitted an application on 30.12.1995 for supplying the copies of three documents referred to in the adverse remarks. But no order was passed on the same. Another representation was submitted by the petitioner on 18.1.1996 for extension of time on the ground that the documents have not been supplied to him. On 20.1.1996, the petitioner then submitted a detail representation against the adverse entries of the year 1994-1995, through proper channel, to the Secretary to the Government, Department of Personnel. A copy of the said representation was also sent to the Additional Chief Secretary-cum-Home Commissioner, Government of Rajasthan and to the Director General of Police, who were the Members of the DPC. The said representation was sent along with sixty three documents in respect of the facts mentioned in the representation.
6. In furtherance of the recommendations of the DPC, the respondents promoted 17 officers' to the Posts of Additional Superintendent of Police, vide order dated 23.1.1996. By the said order, the petitioner was superseded by 12 officers, who were junior to him, as per the seniority list dated 30.06.1990. Further, on 23.1.1996 itself, 4 officers were promoted to the post of Addl. Superintendent of Police vide Annexures -70 & 71. Aggrieved of the promotion order dated 23.1.1996, the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur (herein after referred to as The Tribunal which came to be registered (150/1996) on 1.3.1996.
7. After filing of the appeal and while It was subjudice before the Tribunal, the respondents rejected the representation dated 20.1.1996 filed by the petitioner, vide order dated 13.11.1996. The petitioner had then filed another appeal No. (56/1997) before the Tribunal against the rejection of his representation for expunging the adverse remarks made in his APAR for the year 1997. The learned Tribunal ordered that the appeal No. 56/1997) was to be heard along with the appeal No. (150/1996).
8. The DPC for the promotion from the post of Dy. Superintendent of Police to that of Additional Superintendent of Police had thereafter, met in the year 1996-1997 and 19981999 and the petitioner was again bye passed. Consequently, 53 other junior officers were promoted over and above, the petitioner (Annexure73-80). Thereafter, the appeals were heard by the Tribunal and both of them were dismissed vide order dated 14.10.1998 (Annexure 81).
9. The writ petition is being contested by the respondent No. 1 and 3 by way of filing reply to it. While denying the averments made in the writ petition, it has been stated in the reply that the case of the petitioner was considered by the DPC but he was not found suitable for promotion on account of adverse service record. Further it is stated that the petitioner was well aware that certain adverse entries/remarks made in the APAR at the same was communicated because it was dispatched from the DOP on 1.11.1995, and it could not have taken much a long time to reach the petitioner at Kota, where he was posted at the relevant period. This goes to show, according to the respondents, that the petitioner was in connivance with the subordinate staff, who were restrained from delivering the aforesaid communication to him and soon, he came to know that certain adverse remarks have been made in his APAR, he submitted a representation which shows that he had the knowledge of the communication of adverse remarks. It is stated by the respondents in their reply that this aspect of the matter was considered by the Tribunal and in view of the aforesaid facts, the writ petition too has no substance.
It is also stated in the reply that so far as non-consideration of the representation dated 5.12.1995 by DPC is concerned, it is hardly of any significance because it had taken into consideration the entire service record and therefore, the contention of the petitioner cannot be accepted.
10. It is also stated by the respondents in their reply that once the adverse remarks pertaining to the year 1994-1995, had been dispatched from Jaipur on 1.11.1995, then there was absolutely no occasion for the petitioner not to have been communicated/received them soon thereafter. As per the record, the same had been communicated to the petitioner for the first time on 18.12.1995 at Kota. But much prior to it, the petitioner had submitted a representation to DPC on 22.11.l995 and another representation on 5.12.1995, which itself clearly shows that the petitioner had the knowledge of the adverse remarks in the aforesaid APAR. In such circumstances, as per the respondents, this contention does not hold good that since the adverse remarks had been communicated after convening the meeting of DPC, as such, he had no occasion to submit a representation against the same.
The respondents have also stated that there is no procedure prescribed under the Rules to make available the copies of the documents for the purpose of submitting the representation against the adverse remarks incorporated in the APARs. The respondents have also denied the averments made in the writ petition in respect of annoyance and biasness of the Reporting Officer as well as the Reviewing Officer and have stated that the same is based on surmises and conjectures and are hypothetical.
11. The case of the petitioner is that the adverse remarks in the APAR of the year 1994-1995 were unfounded, malicious and born out of prejudice. The petitioner, to substantiate the said contention, gave details of the cases for annoyance and biasness of his Reporting Officer as well as Reviewing Officer in para 10 of the writ petition. Further he has submitted that when the matter relating to the adverse remarks in APAR was sub-judicete in the Appeal before the Tribunal then fair play and justice demanded that the Authorities concerned, ought to have waited for its decision before deciding the representation of the petitioner against the adverse remarks. It has also been submitted by the petitioner that he had not only being illegally superseded in January, 1996 but later-on the DPC in its subsequent meetings of 1996-97 and 1997-1998 had again recommended for promotions, whereby the petitioner was bye-passed by more than 53 junior Officers. Therefore, it has been submitted that the adverse remarks in the APAR of the year 1994-95, could have come in the way of promotion of the petitioner only once but not for five years. By such an act, the DPC has not only violated the principles of natural justice but has also acted illegally by adopting the principle of double jeopardy.
12. It has been vehemently argued by the learned Counsel for the petitioner that the DPC was under the obligation to ignore the uncommunicated adverse remarks for the year 1994-95 when it met on 23rd November or any day subsequent to it. Moreover, it has been submitted that the petitioner had duly informed the Members of the DPC to ignore the un-communicated adverse entries. But even then the adverse entries in the APARs of the petitioner were taken into consideration and no review was made by the Committee after ignoring such un-communicated adverse remarks. Therefore, the learned Counsel for the petitioner has submitted that the DPC had acted in violation of the instructions of the APAR Rules of 1976.
Learned Counsel for the petitioner has also submitted that the learned Tribunal has grossly erred in imputing the knowledge to the petitioner about the adverse remarks of the year 1994-95. It is submitted that the Tribunal had acted on surmises and conjectures to come to its conclusion. It has also been submitted that the concerning Authorities of the respondent Government, had acted arbitrarily and without application of mind while deciding the representation against the adverse remarks filed by the petitioner. He has also urged mat the learned Tribunal has grossly erred in coming to its finding which is perverse to the evidence on record.
13. Learned Counsel for the respondents, reiterating the averments made in reply, has submitted that the petitioner was not promoted because he was found unsuitable on account of adverse service record. Further he has submitted that the filing of the representation by the petitioner clearly goes to show that he was well aware about the adverse remarks made in the APARs. Therefore, he has submitted that when the petitioner had come to know about the adverse remarks on the basis of which he had submitted the representation, shows that he had received the communication of adverse remarks in his APARs. He has also submitted that the petitioner was considered for promotions along with the other persons who were, within the zone of consideration but on account of adverse remarks, the petitioner was not found suitable for promotion to the post of Addl. S.P.
Learned Counsel for the respondents has further submitted that so far as giving of the copy of the representation dated 5.12.1995 is concerned, the same is of no significance because the DPC had taken into consideration the entire service record objectively. In such view of the matter, according to the learned Counsel for the respondents, the contention raised by the petitioner that the representation submitted by the petitioner on 5.12.1995 had not been considered by the DPC, cannot be accepted. It has also been submitted by the respondents that there is no procedure prescribed under the Rules to make available the copies of the documents for the purpose of submitting the representation against the adverse remarks incorporated in the APARs. Consequently, the arguments about the non-availability of the documents so as to enable the petitioner to submit an effective representation cannot be accepted.
14. It has also been submitted by the respondents that the allegations of annoyance and biasness against the Reporting Officer and the Reviewing Officer is based on surmises and conjectures. Further H has been submitted that such allegations are only an after thought. In respect of convening of DPC for promotions for the year 1995-1996 and 1997-1998 it has been submitted that one post of Additional S.P. was kept vacant in favour of the petitioner in pursuance to the stay order passed by the Tribunal on 5.6.1996. However, when the appeal was dismissed by the Tribunal on 14.10.1998, the said stay stood merged in the order of dismissal.
15. The material placed on record has been carefully scanned and the submissions made by the counsels for the rival parties have been thoughtfully considered. The contention of the Counsel for the petitioner that the adverse remarks in the APARs 1994-1995 of the petitioner were not communicated before its consideration by the DPC on 23.11.1995, has merit. The said entries in the APARs were communicated to the petitioner vide letter dated 4.12.1995 and the same were received on 18.12.1995. This fact is established from the case of the respondents themselves, as they have stated in para 7 of the reply that 'As per the record, the same has been communicated to the petitioner for the first time on 18.12.1995 at Kota'. It is worthwhile to mention here that the communication of the adverse entries in the APARs is not an empty formality. It is the duty of the State Government to communicate such adverse remarks well in time and should not be acted upon before it is so done. This view of mine is supported by the Judgment passed by the Hon'ble Apex Court, as early as in 1979, in the Case of Gurdial Singh Fijji v. State of Punjab and Ors. : [1979]3SCR518 . In the said Judgment, the Hon'ble Supreme Court has laid down as under:
17. The principle is well settled that in accordance with the Rules of natural justice, an adverse report in a confidential roil 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 a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.
16. Moreover, the representation given by the petitioner on 22.11.1995 i.e. prior to the meeting of the DPC, was ignored. Later on the representations sent by petitioner on 5.12.1995, which were prior to the sending of recommendations by the DPC and the representation dated 20.12.1995, given after receipt of the adverse remarks, also met with the same fate. Subsequently, a detail representation was submitted on 20.1.1996, before any steps were taken by the respondents in furtherance of the recommendations of the DPC. It is to be noted that the order of promotions was issued by the respondents only on 23.1.1996. It is the case of the respondents that the petitioner was not found suitable by the DPC on account of adverse remarks.
Besides the DPC had ignored the representation given by the petitioner whereby it was brought to its notice that the said adverse remarks had not been communicated to the petitioner. Similarly, the respondents had also acted in haste by acting in furtherance of recommendations of the DPC without considering the representation given by the petitioner on 20.1.1996.
17. It is also a settled principle of law that the un-communicated remarks cannot be looked into. It has been so held in catena of Judgments by the Hon'ble Supreme Court, as for instance in the Cases of Amar Kant Choudhary v. State of Bihar and Ors. 1984(2) SCR 299, the Hon'ble Supreme Court emphasized that adverse report in a confidential roil 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. Unless the representation against the adverse entry is considered and disposed of it is not just and fair to act upon those adverse entries.
18. In the case of Brij Mohan Singh Chopra v. State of Punjab 1987(2) SLR 54, the Apex Court held as under:
There is no doubt that whenever an adverse entry is awarded to Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not.
19. In the case of State of Gujrat And Anr. v. Suryakant Chunnilal Shah (1999) 1 SCC 529, in Para 25 of the judgment the Apex Court held as under:
Purpose of adverse entries is primarily to forewarn the Government Servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.
20. In the case of P.K. Shastri v. State of Madhya Pradesh And Ors. : AIR1999SC3273 , the Apex Court, in para 6, held as under:
However, we consider that despite the handicaps mentioned above, it would have been more prudent and appropriate for him to have made a proper application to the High Court for extension of time to enable him to comply with the directions of the High Court.
In such view of the matter, I am of the opinion, that the DPC had committed illegality in considering the adverse remarks in the APAR of the year 1994-1995 of the petitioner which were not communicated to him.
21. The next question which requires consideration in this case is as to whether the adverse remarks made in the APARs of the petitioner of the year 1994-95 were just and proper and the objections filed against it by the petitioner had been rejected by respondent after considering the relevant material or not.
22. Before proceeding further, it is important to note that in respect of the APARs, the respondent State had issued the Rajasthan Civil Services Annual Appraisal Instructions, 1976. The purpose of the said instructions was to make an objective assessment of the performance of an employee. Further the adverse entries in the Annual Performance Appraisal, Including the substance of the entire report, as also what had been said in praise of the Government Servant, should be communicated to him. The reporting/reviewing officer may again consider the adverse entry in the light of the representation made and may either take action to expunge the entry, modify it or concur with the adverse entry. It has also been given in the Instructions of 1976 that a decision in this respect on the representation should be taken immediately and the Annual Performance Appraisal forwarded to the next higher authority. Likewise, other instructions have been laid down that if the reporting/reviewing officer, on consideration of the representation, sustains an adverse entry, he should intimate this to the employee and advise him to make further representation, if any, through the reviewing officer, to the Special Secretary to Government, DOP, where the employee belongs to the State Service and the HOD concerned, where the employee belongs to a service other than State Service within 15 days after the employee has been appraised of the decision of the reporting officer.
23. A close scrutiny of the adverse remarks in the APAR of the petitioner in respect of the year 1994-95, disclose that they are based on the instances of the period between August to November, 1994. On perusal of the material on record it is revealed that during September, 1994 to April, 1995, the services of the petitioner was not only appreciated but commendation certificates were issued to him on different occasions and by various authorities. As for instance, in the month of September, 1994 a certificate was issued by the Reporting Officer (Annexure-35). Similar other commendation certificates were issued by the Reporting Officer on 03.10.1994, 7.11.1994 and 12.12.1994, which have been placed on record as Annexures-36, 37 and 38 respectively. The Divisional Commissioner, had also issued a Certificate of appreciation to the petitioner on 27.3.1995 (Annexure-39). The Collector had issued commendation certificate to the petitioner on 6.4.1995 (Annexure-40). The Additional District Magistrate, had also issued such certificate to the petitioner on 2.4.1995.
24. Not only that, the office of the petitioner was inspected 26/27.3.1995 and the inspection report is on record as (Annexure-64). The said report discloses that the work of the petitioner was found satisfactory and the investigations conducted by him were appreciated. The work report of the petitioner has been placed on record as Annexure-42, which gives details about the work performed by him. Therefore, it is to be seen as to whether the adverse remarks given in the APAR of the petitioner for the period between August, 1994 to November, 1994 were recorded in the normal course or 'at one go' by the Reporting Officer on account of some extraneous reasons. In view of the adverse remarks, according to the respondents, the work performance of the petitioner had fallen suddenly. It is a matter of general experience that the quality of work of an officer does not suddenly diminish. As a matter of fact, the adverse remarks were made in respect of period contemporaneous to the one when appreciation of the work of the petitioner was being made in the month of September, October and November, 1994. During the subsequent period also the work of the petitioner was continued to be appreciated by the Reporting Officer himself and other Authorities from the month of December.1994 onwards, upto April, 1995.
25. The respondents have also failed to> consider the detail representation submitted by the petitioner with dozen of documents. As a matter of fact, the said representation against the adverse remarks of APAR of the year 1994-95, was not properly considered after looking to the material on record. The rejection of the representation filed by the petitioner was contrary to law because it had not been considered objectively. The High Court in the Case of Ramavatar Khandelwal v. High Court of Judicature for Rajasthan 1992 (1) RLW 664 has held that the respondent State are bound to look into the material on record and to consider the representation objectively and to give reasons for rejection of the same.
26. After rejection of the representation having been made by the respondents, the appeal filed by the petitioner was considered and decided by the learned Tribunal in Appeal No. (56/1997). Prior to it, the petitioner had filed the appeal against the recommendations of the DPC andalso the order of promotions made by the respondents. The said appeal was registered as Appeal No. (150/1996).
The learned Tribunal while deciding the earlier Appeal No. (150/1996) had committed an error in holding that the adverse remarks were communicated to the petitioner because he had the knowledge about it. The Tribunal had rather imputed knowledge to the petitioner about the adverse remarks of the year 1994-1995. Such findings were rather on the basis of surmises and conjectures. The law does not provide for any deemed communications, in case any adverse remarks came to the notice of an employee. Besides, the object behind communications of adverse remarks to the employee is to bring to his notice the adverse remarks as made by the Reporting Officer, so as to enable him to file the objections, if any, with full and complete details. As mentioned earlier, the communications of adverse remarks is not an empty formality. Therefore, the Tribunal has erred in dismissing the appeal filed by the petitioner No. (150/1996).
27. So far as the appeal filed by the petitioner before the Tribunal, after rejection of his representation by the respondents on 13.11.1996, which was filed separately as appeal No. 56/1997, is concerned, the same was decided on 8.9.1998, holding that the objections raised by the petitioner in both the aforesaid appeals will be examined in Appeal No. (150/1996) preferred by the petitioner. In such view of the matter, the learned Tribunal has failed to appreciate the contentions raised by the petitioner in the light of his grievance against the order of rejection of representation which was without considering the material on record and was without application of mind. The appeal in respect of rejection of the representation of the petitioner and against the adverse remarks should have been, in my view, considered on merits by the Tribunal, in accordance with law. Even if it was to be decided along with the appeal No. (150/ 1996), the same should have been simultaneously considered on merits and after considering the relevant material. Needless to say, that the appeal filed by the petitioner against the order of promotions and the one against the rejection of the representtation against the adverse remarks, had different dimensions, if not the subject.
28. For the aforesaid reasons, I am of the considered view, that the DPC convened on 23.11.1995 should not have taken into consideration the adverse remarks in the APAR of the petitioner for the year 1994-95. The respondents should not have acted upon the recommendations made by the DPC whereby the petitioner was found unsuitable only because of adverse remarks made in the APAR in question. Not only that the respondents have subsequently superseded the petitioner on the basis of the DPC which was convened for promotions against the vacancies of the year 1996-97, 1998-99. Consequently, 53 other officers were promoted over and above the petitioner. Such action of the respondents was certainly arbitrary and unjustified. Further more, the learned Tribunal had substantially considered only one appeal filed by the petitioner No. (150/1996), that too on the basis of sermises and conjectures and by imputing knowledge to the petitioner about uncommunicated adverse remarks in the APAR for the year 1994-1995. The other appeal filed by the petitioner against the order, passed by the respondents, rejecting his representation which was decided by a totally non-speaking order and without being considered on merits. As a matter of fact, the said appeal stood decided on 8.9.1998 itself. In other words, the appeal filed by the petitioner Subsequently came to be decided earlier without being adjudicated upon the questions involved and looking to the relevant material on record.
29. Therefore, this writ petition succeeds and is hereby allowed. The orders impugned dated 8.9.199? 14.10.1998 passed by the learned Tribunal are quashed and set-aside. The adverse remarks made in the APAR of the year 1994-95 deserve to be expunged.
30. Resultantly, the respondents are directed to hold a review DPC for the purpose of promotion of the petitioner which was held on 23.11.1995. The petitioner may be considered for promotion ignoring the adverse remarks recorded in the APAR of the year 1994-95. In case, the petitioner is promoted, then he will be entitled to all consequential benefits w.e.f. 23.01.1996, the date from which the persons junior to him were promoted.
In the facts and circumstances of the case, there shall be no order as to costs.