Satya Narain Shah v. Rajasthan High Court — 1995 DIGILAW 796 (RAJ)

Honble KAPUR, J. – These two appeals arise out of one judgment of the learned Single Judge passed on 16.12.1993 whereby the writ petition filed by the petitioner was partly allowed. As both the parties are aggrieved they preferred these appeals. The reference to the parties in this judgment will be as petitioner and the respondents as they were in the writ petition. The petition relates to two adverse entries in the A.C.Rs. of the petitioner, who is a senior Judicial Officer and the learned Single Judge has ordered that adverse remarks in the APARs. of the years 1985 and 1986 shall stand washed off on account of his confirmation in the selection scale of Rajasthan Higher Judicial Service in the year 1989 but further it has been observed that they cannot be expunged from his record and they can be read again- st him while considering his case for compulsory retirement under rule 244(2) of the Rajasthan Service Rules (hereinafter to be referred to as the R.S.R) or otherwise for elevation as a Judge of the High Court. Brief facts of the case may be looked into. The petitioner is a selection scale officer in the Rajasthan Higher Judicial Service while working as District and Sessions Judge he earned three entries in his Annual Performance Appraisal Reports (hereinafter to be referred as the APARs). The first adverse remark was that he should improve his behaviour with bar. But his representation against this remarks was accepted and the adverse remark was expunged. The dispute is now with regard to the adverse remarks for the years 1985 and 1986 in the APARs., which are respectively as under : "a quarrelsome officer who always desires to be posted at Jaipur. Should improve the quality of his work and reputation." (1985) "He is not upto the mark. His integrity is doubtful." (1986) (2). The representation against these remarks were considered and rejected. (3). The contention of the learned counsel for the petitioner is that he was given promotion in Selection Scale of the Rajasthan Higher Judicial Service vide order dated 4.2.1984 and he was subsequently confirmed in the selection scale by the order dated 5.4.1989 with effect from 28.5.1984. The selection grade of RHJS is given on basis of merit. (3). The contention of the learned counsel for the petitioner is that he was given promotion in Selection Scale of the Rajasthan Higher Judicial Service vide order dated 4.2.1984 and he was subsequently confirmed in the selection scale by the order dated 5.4.1989 with effect from 28.5.1984. The selection grade of RHJS is given on basis of merit. In his petition the petitioner quoted the case of another judicial officer Shri O.P. Jain who is now a High Court Judge in whose APARs, for the year1986 there was an adverse remark that his integrity was doubtful. His representation was rejected and he filed a writ petition and the same was allowed and the adverse remarks for the year 1986 were quashed and expunged. After this decision in O.P. Jains case on 10.8.1990, the present petitioner submitted a representation for expunging remarks for the years 1983, 1985 and 1986. As seen above the representation against the adverse remarks of 1983 was allowed while the other two representations against the remarks of 1985 and 1986 were rejected after the filing of the writ petition. In the writ petition the challenge was to the adverse remarks of three years but subsequently the dispute remained only about adverse entries of 1985 and 1986. (4). The main contention of the learned counsel for the petitioner is that on the basis of the decision in the case of Shri O.P. Jain he should have been treated similarly in respect of the adverse remarks in his confidential reports. According to him he has been discriminated as in identical case different view has been taken. His prayer was that the adverse remarks in his ACRs. should be expunged. In the case of O.P. Jain the adverse remarks were expunged on the ground that no use was made about the complaint reports etc. by the Chief Justice in the year in which adverse reports were submitted before the Chief Justice then facts or report cannot be made basis for writing APAR in the subsequent year. In this case the complaints were made to screening committee about the period when the officer worked as Civil Judge and Judge Labour Court and ACD Cases, thereafter he was promoted as ADJ or DJ and was granted selection scale of DJ retrospectively. He was also selected as a Member of Board of Revenue. In this case the complaints were made to screening committee about the period when the officer worked as Civil Judge and Judge Labour Court and ACD Cases, thereafter he was promoted as ADJ or DJ and was granted selection scale of DJ retrospectively. He was also selected as a Member of Board of Revenue. It was urged that the adverse remarks stand washed off in view of the subsequent promotion. Though the wash of theory has been made applicable in this case but ultimately the remarks were quashed and expunged. (5). In reply the Rajasthan High Court has submitted that on consideration of his representation against the adverse remarks for the year 1985 a Committee of three Honble Judges was constituted by Honble the Chief Justice and on the basis of the recommendation of the Committee that the representation should be rejected the Honble Chief Justice rejected the representation on 30.11.1988. The representation against the adverse remarks of 1986 was rejected on 10.4.1990 by a committee of two Honble Judges, who were other than those who had considered the representation against the remarks of 1985. The petitioner did not challenge it but approached the court after a long time in the year 1992. Thereafter representations and review representations were submitted but they were all rejected. It has also been submitted, that Shri O.P. Jains case is not applicable to the case of the petitioner as the facts are entirely different. (6). The preliminary objection of the respondent that the writ petition be dis- missed on the ground of laches was not accepted. The other findings of the learned Single Judge are as under : (a) The instructions/circulars guide lines issued by the Government are not applicable while writing the ACRs. of subordinate judiciary as the administrative control over the subordinate judiciary is vested in the High Court. (b) The late communication of the adverse remarks is not relevant. In this connection it has been observed that the assessment of the work of officers below the rank of District and Sessions Judge is made by the District and Sessions Judges as reporting officer and then the Honble Inspecting Judge gives his views. For the officers of the rank of the District and Sessions Judge the assessment of the work is made by the Inspecting Judge or the Administrative Judge and finally by the Honble Chief Justice. For the officers of the rank of the District and Sessions Judge the assessment of the work is made by the Inspecting Judge or the Administrative Judge and finally by the Honble Chief Justice. The remarks if adverse are to be communicated by the Registrar and if he fails to communicate in time, the re- remarks of the constitutional functionaries cannot be diluted or whittled down merely because the Registrar failed to communicate the adverse remarks in time. The remarks of Administrative Judge or Honble Inspecting Judge have a greater sanctity than the remarks given by the other officers, and cannot be easily interferred with. It is also not necessary that these constitutional authorities should give specific instances. (c) It is not necessary to communicate to the officer concerned reasons for rejecting the representation against adverse remarks, but they must exist on record and must be shown to the court. In this par- ticular case the detailed reasons recorded by the two Committees were shown to the court. (d) After promotion has been given to a person, the theory of washing off shall come into play but the wash off is not equivalent to the wiping out of remarks. They can be used if the person again earned similar entries. The past entries can be looked into while considering future promotion or deciding whether he is fit to be retained in service or not. When representations are considered and rejected the adverse remarks cannot be expunged from the service record. However, if an officer is promoted after those remarks the theory of wash off will come into play and the adverse remarks would not come in way of future promotions in the cadre of Rajasthan Higher Judicial Service. In this respect it has been observed that he can be posted as Law Secretary, Member Board of Revenue, or Member Sales Tax Tribunal but he shall not stand to benefit by the washing out of these remarks if his case is considered for compulsory retirement under Rule 244 (2) of the Rajasthan Service Rules or for his elevation as a Judge of the High Court as it is not a regular promotion in the cadre of Judicial Service. (7). The learned counsel for the petitioner has attacked the decision of the learned Single Judge on a number of grounds. (7). The learned counsel for the petitioner has attacked the decision of the learned Single Judge on a number of grounds. His first submission is that personal hearing was not given while considering the representation against the adverse remarks. Secondly it is contended that reasons for rejecting representation were not communicated to him. It is also argued that there is no material on record on the basis of which it could be said that the adverse remarks can be justified. According to him one of the Chief Justice was for three months only and he did not have any opportunity of hearing any appeal or revision against the order of the petitioner. The same position is said to be in case of the other Chief Justice also under whom the petitioner worked for four months only. On this basis it is contended that there was no material on the basis of which these Honble Chief Justices could make adverse entries in the APARs of the petitioner. (8). As far as the findings (a) and (c) are concerned, they are based on the Division Bench authorities of this Court and that of the Supreme Court. (9). In M.P. Mittal vs. Rajasthan High Court and others (1), the Division Bench of this Court considered the writs of several judicial officer s who were compulsorily retired and it was held in this case and other similar cases that the guidelines, circulars/instructions issued by the Government for writing APARs. and matters connected therewith are not applicable to members of Subordinate Judiciary. How- ever, some reasonable procedure should be adopted for providing opportunity to file representation, consideration of representation and acceptance or rejection. (10). In the case of Union of India vs. E.G. Nambudiri (2), it has been held that in case representation against the adverse remarks is rejected and there are no reasons then it does not amount to an illegality. However, the competent authority should not act arbitrarily but should act in a fair and just manner. (11). (10). In the case of Union of India vs. E.G. Nambudiri (2), it has been held that in case representation against the adverse remarks is rejected and there are no reasons then it does not amount to an illegality. However, the competent authority should not act arbitrarily but should act in a fair and just manner. (11). In the case of S.N. Mukherjee vs. Union of India (3) it has been held that in view of the expanding horizon of principles of natural justice the requirement to record reasons can be regarded as one of the principles of natural justice which govern the exercise of powers by administrative authorities except in cases where the requirement has been dispensed with expressly or by necessary implication and administrative authority exercising judicial or quasi judicial function is required to record the reasons for its decision. In this case the validity of the finding and the sentence of the General Court of Martrial was under challenge. (12). In Shrilekha Vidyarthi vs. State of U.P. (4), it has been held that the rea- sons need not be communicated to the person concerned but they must exist on record and must be shown to the court. On the basis of these decisions the finding arrived at by the learned Single Judge is in accordance with the decisions of the Supreme Court and a different opinion cannot be taken on these points. (13). The reasons given for ignoring the delay in the communication of the adverse remarks are logical and it can be said that merely on the ground of delay in communication of adverse entries, the same cannot be expunged. (14). The learned counsel for the petitioner has made an effort to get the adverse entries expunged on the ground that one of the Chief Justice, who gave remarks was on this post for three months and the petitioner worked for only four months under the other Chief Justice. However, it can be said that all these grounds must have been raised in the representation submitted by the petitioner and it has received due consideration. It can also be said that the remarks are such which can be given on an observation made during a short period also. (15). However, it can be said that all these grounds must have been raised in the representation submitted by the petitioner and it has received due consideration. It can also be said that the remarks are such which can be given on an observation made during a short period also. (15). The most important point which the learned counsel for the petitioner has emphasised is that the distinction between washed off and wiping out made by the learned Single Judge is not proper. According to him washed off means wither, away bear away, carry off, erode, move, sweep away, etc. and the result is extinction. Hence the remarks which stand washed off cannot be used for any pur- pose i.e. for purpose of compulsory retirement or for purpose of refusing elevation as a Judge of the High Court. (16). As for washing out and wiping out it is contended by the learned counsel for the respondent that these two terms are not synonymous. As far as their use in connection with the record of an officer is concerned the term washing out means that the remarks remain in the record though its significance is not the same, but if it is said that the adverse remarks are wiped out it means they are obliterated, expunged and no longer in the record and there fore it becomes something which does not exist. Washed out only means that if considered appropriate they can be ignored. As for the observation of the learned Single Judge about elevation is con- cerned it is contended that the elevation is not a promotion and recommendation for appointment as a High Court Judge cannot be made on the judicial side. The promotion refers only to cadre posts and the authorities considering the officer for promotion have to decide whether he is fit to get promotion or not. It is also contended that as an officer reaches a higher post after promotion the degree of merit also keeps on changing and this has to be kept in view while examining the record of an officer. (17). We have considered the arguments of both the counsel. (18). The main point to be decided in the case is about the interpretation, the learned Single Judge, of the meaning of `washed off and `wiping of as in his view washed out does not mean wiped out which would mean expunging. (17). We have considered the arguments of both the counsel. (18). The main point to be decided in the case is about the interpretation, the learned Single Judge, of the meaning of `washed off and `wiping of as in his view washed out does not mean wiped out which would mean expunging. The learned counsel for the petitioner has taken us through the dictionary meaning of wash off. We may state that the dictionary meaning of the words wash off and wipe out are not so much relevant for our purpose. It is to be seen how they are to be understood in legal parlance. How are these words used in some of the decision may be looked into. (19). Baidyanath Mahapatra vs. State of Orisa (5) was a case of premature retirement of an employee while considering the record for purposes of premature retirement adverse entries recorded prior to promotion to higher post were also considered. It was observed : "When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any, contained in his service record lose their significance and those remain on record as part of past history. It would be unjust to curtail the service career of a Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion. It is also a settled view that it is not permissible to prematurely retire a Government servant on the basis of adverse entries, representations against which are not considered and disposed of." (20). Thus in similar situation their Lordships of the Supreme Court have not used the words washed off or wiped out but it has been said that such adverse remarks lose there significance and remain on record as part of past history. (21). Baikuntha Nath Das & Anr. vs. Chief District Medical Officer Baripada and anr. (6) is also a case in which the officer was retired compulsorily. It was held that the entire record of service has to be taken into consideration while considering the case for compulsory retirement but more importance is to be attached to the record and performance during the later years and entries in the confidential reports/character rolls, both favourable and adverse are to be considered. It was held that the entire record of service has to be taken into consideration while considering the case for compulsory retirement but more importance is to be attached to the record and performance during the later years and entries in the confidential reports/character rolls, both favourable and adverse are to be considered. If the Government servant is promoted to a higher post notwithstanding the adverse remarks such remarks lose their sting, moreso if the promotion is based upon merit and not seniority. (22). The Allahabad High Court in the case of Raghuveer Singh Chauhan vs. UP State Road Transport Corporation, Lucknow and other (7) has held that the so- litary adverse entry prior to promotion loses its significance after promotion of the employee and if the later record is unblemished, the order of premature retirement passed one year after promotion was illegal. (23). In J.D. Shrivastava vs. State of M.P. and others (8) it was held that stale adverse entries are not to be relied upon for retiring a person compulsorily particu larly when the officer has been promoted subsequent to such entries. (24). The learned counsel for the respondent has placed reliance on Kalyanaraman vs. I.A. Commissioner of Income Tax (9), wherein it has been held that confidential reports are the subjective satisfaction of the officer concerned, though normally one is expected to come to that satisfaction on an objective assessment of the work of the subordinate. The High Court cannot sit in judgment over the remarks of the officer under Article 226 of the Constitution as a subjective satisfaction is not open to objective tests by the court. (25). Most of the cases we have seen above relate to the matter of compulsory retirement and the importance which can be attached to adverse entries after which promotions have been given to the officer. It can be said that the effect of promoting an officer even in the face of adverse remarks means that the remarks are not so derogatory so as to refuse further promotion to him and prevent his continuation in service. In other words it can be said that not much importance is to be attached to them. The remarks remain on record but they do not stand obli- terated. They can be significant if the officer again earns bad entries. In other words it can be said that not much importance is to be attached to them. The remarks remain on record but they do not stand obli- terated. They can be significant if the officer again earns bad entries. If there are no adverse entries subsequent to the promotion then the term washed off can be used. It means that it will not come in his way in the matter of promotion or continuation in service. When the remarks are not found to be very significant it means that its importance has dwindled. In other words it `loses its sting. In what manner such remarks can be made use of subsequently cannot be the subject of judicial scrutiny in advance. How much importance is to be attached to such remarks for a particular purpose would depend upon the authority considering the case of the petitioner for further promotion or any other assignment. To demarcate the purpose for which the entries can be made use of is not the function of the courts. The advise in advance is uncalled for. It is only subsequently if a particular action is challenged then the question would arise whether the matter can be scrutinised in a petition under Article 226 of the Constitution. The petitioner in his writ petition made a prayer for expunging adverse remarks on certain grounds and if he cannot succeed on those grounds the court can refuse to expunge the adverse remarks but there is no justification in making observations as to for what purpose adverse remarks would be subsequently made use of and for what particular purpose they can not be used. The term wash off can be misunderstood hence the better way of expressing would be that the adverse entries in the record of an officer lose their sting in case the officer is promoted after the adverse entry in his record. It does not stand expunged or wiped out. It cannot be said that it does not exist in his record. In view of the subsequent promotion the adverse remarks are not to be given the same significance which will be given if he was not promoted. Hence the observation of the learned Single Judge as regards purpose for which adverse remarks can be read against the petitioner and the purpose for which it cannot be read against him have to be set aside. Hence the observation of the learned Single Judge as regards purpose for which adverse remarks can be read against the petitioner and the purpose for which it cannot be read against him have to be set aside. It may be stated here that recommending his name for purpose of elevation to the High Court is not the judicial function of the court. The process of recommending the name of a Judge of the High Court is laid down in the Constitution and the decision of the Supreme Court, the case generally known as Transfer of Judges case (10), has further elaborated that the Chief Justice and two senior most Judges of the High Court would in consultation recommend the name. This court on the judicial side cannot fetter the discretion of the Constitutional authorities in any manner by directing that certain adverse remarks should be considered against an officer for a particular purpose and they would come in the way of elevation of an officer. It is for the constitutional authorities to decide as to what degree of importance should be given to particular remarks while considering the complete record of the officer for purpose of recommending his name for elevation as a Judge of the High Court. (26). On the basis of the above discussions the plea of the petitioner that the adverse entries should be expunged cannot be accepted. However, the only thing which can be said in his favour is that the adverse entries lose their sting on account of the subsequent confirmation in the selection scale in the year 1989. (27). The Rajasthan High Court has also preferred an appeal and the main grounds raised are that the writ petition ought to have been dismissed on the ground of delay. When the matter has been discussed in detail by the learned Single Judge and also in appeal, the question of delay in approaching the court against the adverse remarks need not be decided in the circumstances of the case. (28). In the result the appeal of the petitioner is allowed to this extent that the observation of the learned Single Judge that the adverse remarks can be read against him while considering his case for compulsory retirement under Rule 244(2) of the Rajasthan Service Rules or otherwise for elevation as a Judge of the High Court are set aside. (28). In the result the appeal of the petitioner is allowed to this extent that the observation of the learned Single Judge that the adverse remarks can be read against him while considering his case for compulsory retirement under Rule 244(2) of the Rajasthan Service Rules or otherwise for elevation as a Judge of the High Court are set aside. The main prayer in the appeal for expunging the adverse entries is disallowed. The appeal of the High Court is also dismissed.