Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
YAMUNA SHANKER MISRA & ANR.
DATE OF JUDGMENT: 21/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted. Heard learned counsel for the parties.
This appeal by special leave arises from the Judgment
of the Allahabad High Court, Lucknow Bench, made on
2.12.1993 in Writ Petition No.9458 (SS)/93.
The adverse remarks for the years 1987-88 and 1988-89
were recorded in the confidential reports of the respondent.
As a consequence, he was not promoted. When claim was made
before the Service Tribunal, the Service Tribunal allowed
the petition and quashed the adverse remarks recorded for
the periods from 1.12.1988 to 31.3.1989 and 1.4.1989 to
30.9.198. While recording that, the Tribunal held that the
remarks made by the Secretary, Food & Civil Supplies were
due to malice and they smack of arbitrariness. The High
Court on a writ petition, by the impugned order, has
affirmed the same. Thus, this appeal by special leave.
In S.Ramachandra Raju vs. State of Orissa [1994
Supp.(3) SCC 424], this Court underlined the need to write
confidential] reports objectively, fairly and
dispassionately in a constructive manner either
commenting/downgrading the conduct, character, efficiency or
integrity of the officer in that behalf. If is stated in
para 11 that from the year 1973-74, the performance of the
duty by the appellant therein was consistently as
‘satisfactory’ to ’ ‘fair’ except for the year 1987-88 in
which year he dropped down suddenly as an average or below
average teacher. In that behalf it was held that "when he
was a responsible teacher and he had cordial relations with
the student community, and was taking pains to impart
lessons to the students, would it be believable that he
avoids to take classes and drops down "if not watched"? When
anterior to or subsequent to 1987-88 he was a man of ability
and of integrity, the same whether would become below
average only for the academic year 1987-88 without
discernible reasons. it would speak volumes on the
objectivity of assessment by the reporting officer i.e. the
Principal. This conduct is much to be desired. This case
would establish as a stark reality that writing confidential
reports bears onerous responsibility on the reporting
officer to eschew his subjectivity and personal prejudices
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or proclivity or predilections and to make objective
assessment. It is needless to emphasise that the career
prospects of a subordinate officer/employee largely depends
upon the work and character assessment by the reporting
officer. The latter should adopt fair, objective,
dispassionate and constructive commends/comments in
estimating or assessing the character, ability, integrity
and responsibility displayed by the officer/employee
concerned during the relevant period for the above
objectives if not strictly adhered to in making an honest
assessment, the prospect and career of the subordinate
officer is bound to lose his credibility in the eyes of his
subordinates and fail to command respect and work from them.
The constitutional and statutory safeguards given to the
government employees largely became responsible to display
callousness and disregard of the discharge of their duties
and make it impossible to the superior or controlling
officers to extract legitimate work from them. The writing
of the confidential is contributing to make the subordinates
work at least to some extent. Therefore, writing the
confidential reports objectively and constructively and
communication thereof at the earliest would pave way for
amends by erring subordinate officer or to improve the
efficiency in service. At the same time, the subordinate-
employee/officer should dedicate to do hard work and duty;
assiduity in the discharge of the duty, honesty with
integrity in performance thereof which alone would earn his
usefulness in retention of his service. Both would
contribute to improve excellence in service." In that case,
on account of the vague remarks made for the year 1987-88,
the appellant therein was compulsorily retired from service.
This Court, after looking into the entire record, set aside
the order. In Moti Ram Deka vs. General Manager [(1964) 5
SCR 683], a Bench of seven Judges had held that in a modern
democratic State, the efficiency and incorruptibility of
public administration is of such importance that it is
essential to afford to civil servants adequate protection
against capricious action from their superior authority. If
a public servant is guilty of misconduct, he should no doubt
be proceeded against promptly under the relevant
disciplinary rules, subject of course, to the protection
under Article 311(2); but to maintain honesty,
straightforwardness and efficiency in permanent civil
servants, it was pointed out, from the point of view of the
State, that they should enjoy a sense of security which
alone can make them independent and truly efficient. In
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress &
Ors. [1991 Supp.(1) SCC 600 at 739], to which one of us, K.
Ramaswamy, J., was a member, the Constitution Bench had held
that the Sword of Damocles hanging over the head of a public
servant would inevitably create a sense of insecurity, The
unbridled wide discretionary powers would conceivably be
abused. Thereby this Court laid emphasis that "an assurance
of security of service to a public employee is essential
requisite for efficiency and incorruptibility of public
administration. It is also an assurance to take independent
drive and initiative in the discharge of the public duties
to actuate the goals of social justice set down in the
Constitution". In paragraph 275 at 740-41, it is further
pointed out that the Court should take note of actualities
of life that persons actuated to corrupt practices are
capable to manoeuvre with higher echelons in diverse ways
and also camouflage their activities by becoming sycophants
or cronies to the superior officers. Sincere, honest and
devoted subordinate officers are unlikely to lick the boots
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of the corrupt superior officer. They develop a sense of
self-pride for their honestly, integrity and apathy and
inertia towards the corrupt and tend to undermine or show
sings of disrespect or disregard towards the corrupt.
Thereby, they not only become inconvenient to the corrupt
officer but also stand as an impediment to the ongoing
smooth symphony of corruption at a grave risk to their
prospects in career or even to their tenure of office. The
term "efficiency" is an elusive and relative one to the
adept capable to be applied in diverse circumstances. It a
superior officer develops liking towards sycophant, corrupt,
he would tolerate him and find him to be efficient and pay
encomiums and corruption in such cases stand no impediment,
When he finds a sincere, devoted and honest officer to be
inconvenient, if is easy to cast him/her off by writing
confidential, reports with delightfully vague language
imputing to be ‘not up to the mark’, ‘wanting public
relations’ etc. At times they may be termed to be ‘security
risk’ to their activities, Thus, they spoil the career of
the honest, sincere and devoted officers. Instances either
way are galore in this regard. Therefore, one would be
circumspect, Pragmatic and realistic to these actualities of
life while angulating constitutional validity of wide,
arbitrary, uncanalised and unbridled discretionary power of
dismissal vested in an appropriate authority either by a
statue or a statutory rule."
In State Bank of India & Ors. vs. Kashinath Kher & Ors.
[(1996) 8 SCC 762 AT 771 in para 15], this Court pointed out
that the object of writing the confidential report is two-
fold, i.e., to give an opportunity to the officer to remove
deficiencies and to inculcate discipline, Secondly, it seeks
to serve improvement of quality and excellence and
efficiency of public service. This Court in Delhi Transport
Corpn. case (supra) pointed out the pitfalls and insidious
effects on service due to lack of objectives by the
controlling officer. Confidential and character reports
should, therefore, be written by superior officers higher
above the cadres. The officer should show objectivity,
impartiality and fair assessment without any prejudices
whatsoever with the highest sense of responsibility alone to
inculcate devotion to duty, honesty and integrity to improve
excellence of the individual officer. Lest the officers get
demoralised which would be deleterious to the efficacy and
efficiency of public service. Therefore, they should be
written by a superior officer of high rank. who are such
high rank officers is for the appellant to decide. The
appellants have to prescribe the officer in rank above the
officer in rank above the officer who has written
confidential report to review such report. The appointing
authority or any equivalent officer would be competent to
approve the confidential reports or character rolls. This
procedure would be fair and reasonable. The reports thus
written would form the basis for consideration for
promotion. The procedure presently adopted is clearly
illegal, unfair and unjust". In U.P. Jal Nigam & Ors. vs.
Prabhat Chandra Jain & Ors. [(1996)2 SCC 363 at 634 para 3],
this court had held that while writing the confidential
reports, if the official were to be downgraded from the
previous reports, "as we view it, the extreme illustration
given by the High Court may reflect an adverse element
compulsorily communicable, but if the graded entry is of
going a step down, like falling from ‘very good’ to ‘good’
that may not ordinarily be an adverse entry since both are a
positive grading. All that is required by the authority
recording confidentials in the situation is to record
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reasons for such downgrading on the personal file of the
officer concerned, and inform him of the change in the form
of an advice. If the variation warranted to be not
permissible, then the very purpose of writing annual
confidential reports would be frustrated. Having achieved an
optimum level, the employee on his part may slacken in his
work, relaxing secure by his one-time achievement. This
would be an undesirable situation. All the same the sting of
adverseness must, in all events, not be reflected in such
variations, as otherwise they shall be communicated as such.
It may be emphasised that even a positive confidential entry
in a given case can perilously be adverse and to say that an
adverse entry should always be qualitatively damaging may
not be true. In the instant case we have seen the service
record of the first respondent. No reason for the change is
mentioned. The downgrading is reflected by comparison, This
cannot sustain. Having explained in this manner the case of
the first respondent and the system that should prevail in
the jal Nigam, we do not find any difficulty in accepting
the ultimate result arrived at by the High Court."
In Sukhdeo vs. Commissioner Amravati Division. Amravati
& Anr. [(1996) 5 SCC 103 paragraph 6] this Court has pointed
out that "It is settled law that when the Government resorts
to compulsorily retire a Government servant, the entire
record of service, particularly, in the last period of
service is required to be closely scrutinised and the power
would be reasonably exercised. In State Bank of India vs.
Kashinath Kher [JT (1996) 2 SC 569 at 578 para 15], this
Court had held that the controlling officer while writing
confidential and character roll report, should be a superior
officer higher above the cadres of the officer whose
confidential reports are written. Such officer should show
objectivity, impartiality and fair assessment without any
prejudice whatsoever with highest sense of responsibility to
inculcate in the officer’s devotion to duty, honestly and
integrity so as to improve excellence of the individual
officer, lest the officers get demoralised which would be
deleterious to be efficacy and efficiency of public service.
In that case it was pointed out that confidential reports
written and submitted by the officer of the same cadre and
adopted without any independent scrutiny and assessment by
the committee was held to be illegal. In this case, the
power exercised is illegal and it is not expected to from
that high responsible officer who made the remarks. When an
officer makes the remarks, he must eschew making vague
remarks causing jeopardy to the service of the subordinate
officer. He must bestow careful attention to collect all
correct and truthful information and give necessary
particulars when he seeks to make adverse remarks against
the subordinate officer whose career prospect and service
were in jeopardy. In this case, the controlling officer has
not used due diligence in making remarks. It would be
salutary that the controlling officer b before writing
adverse remarks would give prior sufficient opportunity in
writing by informing him of the deficiency he noticed for
improvement. In spite of the opportunity given if the
officer/employee does not improve then it would be an
obvious fact and would form material basis in support of the
adverse remarks. It should also be mentioned that he had
given prior opportunity in writing for improvement and yet
was not availed of so that it would form part of the
record."
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
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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 confidential reports objectively, fairly
and dispassionately while giving, as accurately as possible,
the statement of facts on an 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.
It is seen from the record that the respondent
maintained constantly good record earlier to the adverse
remarks made for the aforesaid period. It would appear that
subsequently also he had good confidential reports on the
basis of which the clouds over his conduct were cleared and
he was given further promotion. Mr. Rakesh Dwivedi, learned
Advocate General, in fairness, therefore, has stated that
since the respondent has been regularised after the
subsequent good reports, the dispute does not survive for
adjudication on merits. But the counter comments made
against him by the Secretary were warranted in view of the
material on record. He brought to our notice that as on the
date when the entries were made, the vigilance enquiry was
pending against the respondent and, therefore, the adverse
remarks came to be made. The findings recorded by the
Tribunal of malice and arbitrariness on the part of
Secretary as affirmed by the High Court are not warranted
for two reasons. Firstly, since the Secretary was not co-
nominee to the proceedings and had no opportunity to explain
the position, it would be violative of the principle of
natural justice. Secondly, since the vigilance enquiry was
pending. unless the officer was exonerated and cleared from
the cloud, necessarily, the Secretary could not clear the
conduct and integrity of the officer. Therefore, the adverse
remarks cannot be said to be to smack of arbitrariness,
The appeal is accordingly allowed only the above
extent. No costs.
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