JUDGMENT 1. - The petitioner is a member of Rajasthan Administrative Services (hereinafter to be referred as "RAS") of 1974 batch, having been so appointed in June, 1975. 2. It is stated that the petitioner was promoted to Senior Scale in the year 1979 and in Selection Scale in the year 1988 and was assigned the year 1988-89 for the promotion to Selection Scale on merit basis. The promotion from RAS to Indian Administrative Services (herein after to be referred as "IAS") are effected solely on the basis of service record of Annual Performance Appraisal Report (for short "APAR") of the officers. Certain instructions have been issued by State of Rajasthan for assessing or evaluation and for recording APARs, which have been reproduced in the writ petition. It is stated that for recording the missing APARs, the conduct of officer is to be assessed on the reports of preceding and succeeding years and after more than 2 years no attempt should be made to prepare a report of the officer. 3. It is the grievance of petitioner that in total violation of instructions in regard to submission of APARs, the petitioner has been ignored, whereas two officers junior to petitioner i.e. Mr. J.N. Modi and Mr. K.S. Rathore were promoted to the post of IAS in the year 1993 and two other junior persons to petitioner have been promoted in the year 1995, even though the petitioner's performance had been outstanding. 4. It is submitted that for the year 1985-86, the petitioner had more than one reporting officer, and therefore, the report which was more beneficial to petitioner should have been considered as a report for the entire year in view of the decision of this court in Civil Writ Petition 1634/94 Prem Prakash Bidyasar Vs. State of Rajasthan. 5. It is submitted that for the year 1988-89, 1990-91, 1991-92 no efforts were made by respondents to get the report filled in by other reporting officer and the reports of one reporting Officer was considered a as final report and submits that this was in violation of para No. 6 of Part II of Instructions issued on 30.3.76. 6. It is submitted that according to Circular dated 5.1.66, apart from the fact that if it is more than 2 years, the blank APAR will have to be considered the APAR of preceding and succeeding years. 6. It is submitted that according to Circular dated 5.1.66, apart from the fact that if it is more than 2 years, the blank APAR will have to be considered the APAR of preceding and succeeding years. That is for the year 1988-89 (from 19.12.88 to 31.3.89) when the petitioner was working as Chief Executive Officer and Secretary Zila Parishasd Ganganagar, his work was to be evaluated on the basis of report of the year 1986-87 (as the report of 1987-88 is blank) and for remaining years in question 1989-90 and 1992-93, the petitioner had two Reporting Officers, but the report of one Reporting Officer was only obtained by the Government. Therefore, the reports of these years will have to be treated as blank as far as report of other Reporting Officers are concerned, and if the instructions are applied and the reports are considered in accordance with the instructions, the APARs for the year 1986-87 and 1989-90 will have to be assessed as outstanding and similar would be the effect for the year 1990-91, 1991-92. It has also been alleged that for the year 1988-89 the officer who was Accepting Officer had written report as Reviewing Officer which he was not entitled to write. 7. The reports of the year 1988-89, 1990-91, which were reported as outstanding have been illegally toned down by Reviewing Officer/Accepting Officer, without there being any reason and without giving any reason in violation of instruction given on 1.5 of 30.3.76. 8. It is further submitted that the reports for the year 1991-92 and 1992-93 should have been outstanding instead of very good as same officer had given outstanding for the year 1990-91 and there was no reason as to why the petitioner should not be given outstanding report of subsequent year. It is stated that number of representations were submitted by the petitioner but no action was taken. Therefore, ultimately the petitioner had to file a writ petition No. 894/96, which was decided on 25.3.96 with the direction to State Government to decide the representation of petitioner. But the representation of petitioner has been rejected vide annexure-9. 9. It is stated that number of representations were submitted by the petitioner but no action was taken. Therefore, ultimately the petitioner had to file a writ petition No. 894/96, which was decided on 25.3.96 with the direction to State Government to decide the representation of petitioner. But the representation of petitioner has been rejected vide annexure-9. 9. The petitioner is aggrieved by the evaluation of APARs being in violation of instructions dated 30.3.76 and by the impugned order dated 4.10.96 (Ann.9), whereby the representation of petitioner had been rejected and the petitioner claims that the APARs for the year 1985-86, 1987-88, 1988-89, 1990-91, 1991-92, and 1992-93 be treated outstanding for the reasons mentioned in the writ petition and be declared as violative of circular issued on 30.3.76. 10. The reply has been filed. Preliminary objection has been taken that the circular, being relied by petitioner, has no legal force, and therefore, even if there is any irregularity committed in APARs that cannot be gone into in writ petition. It is further submitted that vide annexure-R/1 dated 26.3.98, the petitioner has been given selection of RAS against the vacancies of 1988-89 by review DPC and he has been promoted and because of this count alone his name has been entered above the name of Mr. Jayanti Lal of the year 1991. It is further submitted that the name of petitioner was sent for consideration for promotion to the post of IAS and for the reason that the petitioner has already been considered by the DPC for the year 1988-89, there is hardly any necessity to reconsider the case of petitioner in regard to APARs of 1985-86, and if some irregularities had been committed, that was because of the reason that petitioner had not submitted two proformas for filling the APARs in regard to the places where he had been working. 11. In rejoinder, the petitioner submits that there is no provision that the petitioner was required to submit separate APAR forms for the year in question, nor any such blank APAR forms were given to petitioner, and therefore, the respondents are unnecessarily blaming the petitioner for the lapses on their part. 12. The petitioner was claiming on the very first cay that his APARs have not been recorded in accordance with the instructions dated 30.3.1976. 12. The petitioner was claiming on the very first cay that his APARs have not been recorded in accordance with the instructions dated 30.3.1976. Clause 12 of the said instructions under the heading of 'Levels of Assessment' provided that the assessment of an employee will generally be made at two levels; (i) immediate superior officer will be the reporting officer and (ii) the next higher officer will be the reviewing officer. However, where, higher officers are in the know of the facts, and wherein they so feel they may make their own observations as well. 12. LEVELS of ASSESSMENT (b)(i) The reporting/reviewing officer in respect of each category of post in the subordinate/ministerial services will be as approved by the respective Heads of Departments. (ii) In respect of officers of the State Services, the reporting/reviewing officers will be as approved by the Government in the Administrative Department concerned (Instructions F.13(42) Karmik/Ka-1/Go.Pra/84 dated 12.3.1985). 13. One of the clause relating to the Reporting Officer as produced in Clause 14, reads as under : RESPONSIBILITY of THE REPORTING OFFICER: 14(i) It shall be the duty of the reporting officer to carefully consider the norms prescribed. (iv) While filling up the column on overall assessment, the reporting officer must record the over all grading/specific categoridation of the employee i.e. "outstanding", "Above average", "Average" and "Below Average". 15. RESPONSIBILITIES of THE REVIEWING OFFICER : (i) While it might be difficult for the higher officer to get to know a large number of employees two grades below him his overall assessment of the character, performance and ability of the reported officer is vitally necessary as a built in corrective. The judgment of the immediate superior, even though completely fair in its intent might some times be too narrow and subjective to do justice to the employee reported upon. The officer superior to the reporting officer should, therefore, consider it his duty to personally know and form his own judgment of the work and conduct of the officer reported upon. He should accordingly exercise positive and independent judgment on the remarks of the reporting officer under the various detailed headings in the form of the report as well as on the over all assessment, and express clearly his agreement of disagreement with those remarks. He should accordingly exercise positive and independent judgment on the remarks of the reporting officer under the various detailed headings in the form of the report as well as on the over all assessment, and express clearly his agreement of disagreement with those remarks. This is particularly necessary in regard to adverse remarks, if any, where the opinion of the higher officer shall be construed as the correct assessment. 14. It was further provided that the Head of the Departments were to appraise the reports to the effect whether they have been written in accordance with these instructions or not. The circular provided as under: 6. SCRUTINY of ANNUAL PERFORMANCE APPRAISAL REPORTS: The Heads of Departments in respect of employees belonging to subordinate/Ministerial/Class IV services and Department of Personnel (ACR Cell) in respect of State Services should scrutinise the Annual Performance Appraisal Reports to see whether they have been written in accordance with these instructions, and whether adverse remarks, if any, have been communicated to the officers concerned. If there is any defect in a report, it should be returned to the reviewing officer concerned for rectification." 15. Regarding assessment of evaluation of blank or unfilled APARs, circular was issued on 4/5.1.1966 which provided as under: (I) Assessment of Annual Confidential Reports for purposes of promotions.-Some times Annual Confidential Reports about an Officer in respect of a past year is not available. With the introduction of merit formula of promotion, and even there wise, the necessity and continuity of ACR is obvious. Attempt to is made to make up the deficiency of the missing ACR by asking Reporting & Reviewing Officer under whom the Officer concerned worked at that particular time to prepare an ACR on the basis of their past recollection about the work and conduct of the officer concerned. This is hardly a correct or realistic way of making up the lacuna. Government have, therefore, decided that in case the missing report pertains to a period more than two years old, no attempt should be made to prepare and put in a new report, but the authority who is called upon to assess the merit or otherwise consider the work and conduct of the officer for the year of the missing report, should assess merit and conduct for that year also on the basis of reports for the preceding and succeeding years. For instance, if the report for the year 1960-61 is not available, the missing report may be provided though the preparation of new report, till the end of the year 63-64 but thereafter no attempt should be made to get a substitute of the missing report prepared but assessment of work and conduct of the officer may be made on the basis of the reports for the years 1959-60 and 1961-62. 16. The petitioner has pointed out that the matter already stands settled by the judgment of this court in Civil Writ Petition No. 1634/94 Prem Prakash Bidyasar Vs. State of Rajasthan , by not treating the beneficial report in favour of the petitioner in a year as per this circular. The petitioner is aggrieved that the circular had been violated in the following manner. '(1) That the petitioner had more than one reporting officer in respect of the year 1985-86. The report beneficial to the petitioner in respect of the year is not being treated by the respondent State as the report for the entire year as per the Hon'ble Rajasthan High Courts decision in S.B. Civil Writ Petition No. 1634 of 1994-Prem Prakash Bidyasar v. State of Rajasthan. (ii) No care was taken by respondent State to get the report filled in by the other reporting officer of the petitioner for years i.e. 1988-89, 1990-91, 1991-92 and treated the report filled in by only one reporting officer as the report for the entire year under report. This amounts to violation of para 6 of the Part II of the instructions of 30.3.1976. (iii) The respondent State is not treating the report in respect of the part of the year, which has not been written for the years 1988-89, 1990-91, 1991-92 as stated above, as blank and is not assessing the unfilled APAR for that part of a year on the basis of preceding and succeeding year's A.P.A.Rs. as per circular No. F.6(29)Apptt./(A-I)'66 dated 4/5.1.1966. On the contrary, it is treating the A.P.A.R. filled by one reporting officer only as the report for the entire year illegally.' 17. as per circular No. F.6(29)Apptt./(A-I)'66 dated 4/5.1.1966. On the contrary, it is treating the A.P.A.R. filled by one reporting officer only as the report for the entire year illegally.' 17. It is the contention of the petitioner that the blank reports of 1990-91, 1991-92 in respect of the reporting officer is assessed on the basis of reports of 1989-90 and 1992-93, these reports are bound to be evaluated as outstanding by taking beneficial report of the petitioner for the year when there are two reports as per judgment in the case of Prem. Prakash Bidyasar (supra) and according to the petitioner the reports in regard to the years 1987-88, 1988-89, 1990-91 and 1991-92, are bound to be the outstanding and thus the respondents have not applied mind to the repeated representations made by the petitioner. The action of the respondent is in total violation of para 12 of the instructions issued on 30.3.1976. 18. It is the next contention that the 'APAR' of the petitioner as reported 'outstanding' has been toned down by the reporting officer of the year 1988-89 and 1990-91. It is submitted that the officer had no occasion to see and watch the work of the petitioner and in case his ACRs were to be toned down, it was necessary for the officer concerned that he should have given certain reasons for toning down the APARs. It is submitted that as per para 15 of the instructions as mentioned above, the clear reasons should have been given for agreeing or disagreeing with the assessment made by the reporting officer.19. The petitioner had also filed a writ petition being S.B. Civil Writ Petition No. 894/96 decided on 25.3.1996 wherein direction was given to the State to decide the representation according to law within six months from the date of the order. The order of the High Court has been annexed as Annexure-6 wherein the High Court on 25.3.1996 had ordered to decide the representations dated 21.8.1995 and 28.8.1995 within a period of six months. The representation dated 21.8.1995 and 28.8.1995 have been attached as Annexures 2 and 3 to the present writ petition. The grievance of the petitioner in these two representations was in regard to the review of APARs for the years mentioned therein. Detailed representations were filed. The representation dated 21.8.1995 and 28.8.1995 have been attached as Annexures 2 and 3 to the present writ petition. The grievance of the petitioner in these two representations was in regard to the review of APARs for the years mentioned therein. Detailed representations were filed. The Government rejected the representation vide Annexure-9 dated 4.10.1996 in one line order English translation of which is reproduced as under: 'You are hereby informed that the representation as submitted by you has been considered and is rejected.' The petitioner challenges Annexure-9 on the ground of it being totally non-speaking and being without application of mind.20. After hearing learned counsel, of the parties, I am of the opinion that the writ petition must succeed. The Government had issued instructions on 30.3.1976 and also on 4/5.1.1966 which have been reproduced in the writ petition for guiding the officers in, certain situations arising in certain contingencies i.e. if the reports of a particular year contains two reports by bifurcating the period by two officers and in that situation beneficial report is to be taken into account. It has also been so held by this court in Prem Prakash Bidayasar. A contingency has also been provided that if there are blank reports, in that situation the concerned officer is not to suffer but the reports of the previous year and of the following year are to be taken into account and the officer is to be given the report accordingly which-ever is beneficial in regard for the blank year and so on. The petitioner was representing time and again. His juniors were superseding him in regard to selection grades, promotions and also consideration for IAS promotions basing on the APARs. The petitioner was aggrieved. He filed a writ petition. The writ petition was allowed vide Annexure-6 with the direction that his representations Annxures-2 and 3 shall be considered. The representations have been rejected just by one line order without application of mind, or even giving reasons. In my opinion, injustice has been committed to the petitioner. It was the duty of the competent officer to have considered the representations and the case of the petitioner on the basis of the submissions made by the petitioner in Annexures 2 and 3 as has been directed by the High Court. In my opinion, injustice has been committed to the petitioner. It was the duty of the competent officer to have considered the representations and the case of the petitioner on the basis of the submissions made by the petitioner in Annexures 2 and 3 as has been directed by the High Court. The officer who had passed the order Annexure-9 had not applied his mind nor he has referred to any Government instructions or circulars or even the facts or the grievance or the representations made by the petitioner time and again in the representation and also in the writ petition. The petitioner has been discriminated. The order Annexure-9 is arbitrary and is also against the direction given by the High Court in Annexure-6. It is assumed that if any direction is given by the High Court to consider the representation, it is implied that the authority while considering such representation shall apply mind to the facts of the case and give a reasoned order, that has not been done in the present case in Annexure-9 (in English Translation has been reproduced above) nor any record has been produced to show whether the competent authority had any reasons on the file. The grievance of the petitioner stays where it was in the year 1990 and onward when he had been representating time and again. It is required of the Government to at least pass an order to say that the requirement of law and guidelines as prescribed by the Government itself are complied with or being followed. In my opinion, Annexure-9 is the hardly an answer to the direction given by this court vide Annexure-6 for considering and passing an appropriate order in regard to the representations of the petitioner vide Annexures 2 and 3 attached with the writ petition. Even otherwise, there is merit in the submission of the petitioner that he has been discriminated, in the manner as discussed above and instead of 'outstanding' reports, the petitioner has been toned down with a 'very good' reports.21. In the case of State of Rajasthan Vs. R.B. Parmar & Anr. Even otherwise, there is merit in the submission of the petitioner that he has been discriminated, in the manner as discussed above and instead of 'outstanding' reports, the petitioner has been toned down with a 'very good' reports.21. In the case of State of Rajasthan Vs. R.B. Parmar & Anr. 1999(1) RLR 125 , one R.B. Parmar had preferred and appeal before the Service Tribunal against the down grading made in his Annual Performance Appraisal Report (APAR) and for quashing the same for the purpose of promotion on merit alone, the officer should have 'out-standing/very good' record at least five out of seven years preceding the year for which the DPC was held. He was not promoted, he challenged the action before the Tribunal. Mr. Parmar was found to be 'out-standing' in the year 1991-92. He was down graded in the year 1992-93. He was again found out-standing in the year 1994-95 and 1995-96 by the Reporting Officer but the said Reporting Officer down graded as 'good officer' without affording any opportunity of hearing to Parmar. Following the M.A. Rajasekhar's case reported in 1996(10) SCC 369 and the case of U.P. Jal Nigam Vs. Prabhat Chandra Jain 1996(2) sCC 363 wherein it was held if the graded entry was going to a step down, like falling from 'very good' to 'good', that may not ordinarily be an adverse entry since both are a positive grading; but what is required by the authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advices. It was further observed that if an employee legitimately had earned 'out-standing' report in a particular year which in succeeding one and without his knowledge is reduced to the level of 'satisfactory' without any communication to him, it would certainly be adverse and affect him at one or the other stage of his career. It was held that the down grading is reflected by comparison. This cannot be sustained. The Service Tribunal had directed the State Government to provide opportunity to the petitioner before down grading him. The Service Tribunal had set aside the action of the respondents in down grading Mr. Parmar in the above said case .22. For the reasons mentioned above, the writ petition is allowed. This cannot be sustained. The Service Tribunal had directed the State Government to provide opportunity to the petitioner before down grading him. The Service Tribunal had set aside the action of the respondents in down grading Mr. Parmar in the above said case .22. For the reasons mentioned above, the writ petition is allowed. It is directed that the competent authority shall reconsider the representation of the petitioner in view of the discussions made above and review the assessment of the petitioner as per the guidelines provided in various circulars and in view of the law laid down in Parmar's case if the reporting officer had assessed the petitioner as 'outstanding' and there is no report of the accepting or reviewing officer for a particular year, the outstanding report is to be accepted and similarly for the reasons that for down grading from 'outstanding' to 'very-good' no opportunity had been given and no reason has been given, the action of the respondents could not be sustained in that respect.23. The respondents are directed to reassess the APAR of the petitioner as per the guidelines and in case the APARs are re-assessed to the benefit of the petitioner, it goes without saying that if he is eligible for any promotion which might have been denied to him because of said assessment, the same shall be considered for restoration to him in accordance with law. The exercise shall be completed by all means within a period of three months from the date of the order.The writ petition is allowed with the above said observations with a cost of Rs. 2,000/-.Petition Allowed with costs. *******