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2000 DIGILAW 626 (ALL)

STATE OF UTTAR PRADESH v. ANIRUDH RAI

2000-04-26

BHANWAR SINGH, R.H.ZAIDI

body2000
BHANWAR SINGH, J. ( 1 ) THE State of U. P. has filed this petition under Article 226 of the Constitution of India praying for a writ in the nature of certiorari quashing the judgment and order dated 11. 1. 1993 as contained in Armature-1. By virtue of the said judgment and order, the respondent No. 1 Sri anirudh Rai was held to be entitled to get promotion to the post of C. I. List II with effect from the date his next junior was promoted along with all consequential benefits. ( 2 ) THE petitioners case is that Sri Anirudh Rai filed a claim petition before the U. P. Public services Tribunal. Lucknow. praying for inclusion of his name in the select list of candidates who were entitled to be promoted to the post of C. I. List II. The select list was prepared for promotion of Sub-Inspectors by the departmental selection committee. The petitioners case was also considered by the said committee but he was not found fit. His contention was that his claim for promotion had not been considered because of some adverse entries in his character-roll but the representations/appeals against such adverse remarks were still pending. On the other hand, the State Government denied the petitioners contention and reiterated its stand that the annual entries in the character-roll of the petitioner for the years 1974. 1976 and 1983 indicated his unsatisfactory performance and it was on the basis of these remarks that he was found unsuitable for promotion. On having scanned the allegations and the counter allegations of the parties, the tribunal arrived at a finding that the adverse entries for the years 1974 and 1976 existing in the character roll of the petitioner were communicated to him with delay ; as a consequence he could not avail opportunity of having wriggled out of the said adversity. It was also held by the tribunal that the selection grade being awarded to the petitioner with effect from 1. 5. 1986. the adverse entries prior to the sanction of selection grade lost their significance. However, the said view, according to the petitioner, was erroneous as the selection grade was awarded to every sub-Inspector on completion of ten years of service but promotion was given on senlority-cum-merit basis. 5. 1986. the adverse entries prior to the sanction of selection grade lost their significance. However, the said view, according to the petitioner, was erroneous as the selection grade was awarded to every sub-Inspector on completion of ten years of service but promotion was given on senlority-cum-merit basis. Whereas at the time of awarding selection grade, there is no competition with others and all persons who are eligible are granted selection grade, for the purposes of promotion departmental selection committee is constituted and a select list on the basis of the length of service as well as merit is prepared. The eligible candidates are Interviewed by the committee and the entire service record of every candidate is scrutinised. If the departmental selection committee does not find anyone fit for being promoted, it cannot be said that there is violation of any fundamental right. In these circumstances, the impugned judgment and order being contrary to the settled norms and guidelines as contained in G. O. No. 6379-8-A dated 5. 11. 1965 is erroneous and liable to be quashed. ( 3 ) THE respondent No. 1 filed his counter-affidavit supporting the impugned judgment and order of the Tribunal. According to him, his claim for promotion was rejected due to adverse comments appearing in his character-roll entries pertaining to the years 1974. 1976. 1977, 1982, 1983 and 1984 even though the adverse remarks for the years 1977, 1982, 1983 and 1984 have been expunged. His appeal preferred against the adverse entries for the year 1976 was still pending. The said entry was communicated to him in the year 1981, i. e. , after a lapse of 4 years. Similarly the adverse remarks for the year 1974 were communicated to him after he had filed the claim petition before the Tribunal and the representation filed by him was still pending. The meeting of the selection committee was held on several occasions from July 23, 1985 to december 26, 1985. The answering respondent filed his claim petition in the year 1986. His representation for expunctlon of remarks for the year 1981 was pending even after the selection process before the departmental selection committee was over. Defending the conclusion of the tribunal. Anirudh Rai reiterated that sanction of selection grade to him amounted to washing off his adverse remarks prior to 1984. Thus, the State Governments petition being devoid of merit deserves to be dismissed. Defending the conclusion of the tribunal. Anirudh Rai reiterated that sanction of selection grade to him amounted to washing off his adverse remarks prior to 1984. Thus, the State Governments petition being devoid of merit deserves to be dismissed. ( 4 ) WE have heard the learned counsel on both the sides and perused the record. ( 5 ) THE grounds, inter alia, on the basis of which the petitioner has sought for quashing of the impugned order of the Public Services Tribunal are that all the adverse entries awarded to opposite party No. 4 prior to 1984 would not be deemed to have been washed off following the sanction of the selection grade to him award of selection grade would not automatically entitle him to get promotion to the rank of C. I. List II as issues regarding selection grade and promotion are different and the declaration Issued by the U. P. State Services Tribunal is without jurisdiction. ( 6 ) IT is significant to note that the petitioner has not challenged the averment of respondent No. 1 and the finding of the Tribunal that the adverse entries pertaining to the years 1977. 1982. 1983 and 1984 had been quashed. It was also not disputed that two separate appeals pertaining to the adverse remarks for the years 1976 and 1977 were not disposed of until the departmental selection committee had considered the matter. In para 5 of the petition, it is recited that the annual remarks for the years 1974, 1976 and 1983 awarded to respondent No. 1 were unsatisfactory. The finding of the Tribunal was that appeal against the adverse remarks for the year 1976 was pending and the adverse entry for the year 1983 had already been quashed. On the face of this factual finding based on the entries in the character roll of respondent No. 1, the ambiguous averments of the petitioner are of no avail and as such, they cannot be accepted. In para 2 of his counter-affidavit, Anirudh Rai has categorically stated that out of the remarks for the years 1974, 1976, 1977, 1982, 1983 and 1984, the adverse remarks for the years 1977, 1982, 1983 and 1984 have been quashed. In para 2 of his counter-affidavit, Anirudh Rai has categorically stated that out of the remarks for the years 1974, 1976, 1977, 1982, 1983 and 1984, the adverse remarks for the years 1977, 1982, 1983 and 1984 have been quashed. This has not been challenged by the petitioner and In the rejoinder-affidavit of Sri Qazi Wasimul Rahman, it is simply mentioned that para 2 of the counter-affidavit is not admitted and whatever is mentioned in para 5 of the petition is reaffirmed. It shows that the departmental selection committee had taken into consideration the adverse remarks which were expunged. The petitioner has not filed extracts pertaining to the adverse remarks from the character-roll of the respondent No. 1. As a matter of fact, the petitioner should have placed the original character roll of the respondent No. 1 for perusal of the court and for seeking rebuttal of the averments of respondent No. 1 but this has not been done probably with a view to suppress the real facts. If produced before the Court, it would have been indicated as to whether the remarks which were expunged and eliminated under the orders of the authorities concerned, were in fact deleted or not as per rules. It is important to mention that once an adverse remark is expunged, it has to be deleted in the way so as to make it unreadable ; meaning thereby it is either to be covered by a piece of paper or to be painted with a fluid to render it totally indecipherable. The idea behind this is that the remarks which have been expunged may not cause any prejudice in the mind of any authority who has the rightful claim to have an access to it. In case an adverse remark is left to be as readable, human eyes will not shut in natural course to skip over it. Therefore, the spirit behind the total deletion of expunged remarks is that nobody can see what existed on record prior to the remarks were eliminated. It appears that the adverse remarks awarded to the respondent No. 1 in spite of the fact that they had been expunged, were left open for eyes to be taken note of. That is why it is mentioned in the petition, that the promotion of respondent No. 1 was withheld on account of his unsatisfactory performance as recorded in his character roll. That is why it is mentioned in the petition, that the promotion of respondent No. 1 was withheld on account of his unsatisfactory performance as recorded in his character roll. This is unfortunate that the character roll of a police officer has been dealt in a shabbily manner without attaching due significance and importance to the spirit of a character-roll being maintained. In these circumstances, the adverse remarks which had been expunged, could not operate as barriers in Anirudh Rais promotion. ( 7 ) IT was also surprising to know that the annual remarks pertaining to the year 1976 were communicated to Anirudh Rai in the year 1981. The entry for the year 1974 was communicated to him after he had filed the claim petition before the Tribunal and the appeal filed against such remarks was still pending. No reason has been disclosed as to why the said entry was communicated after four years of its being awarded and amazingly the appeal fiied by the respondent No. 1 against the said remarks could not be disposed of within reasonable time. The said appeal was kept on lingering for. many years and remained undecided until a select list was prepared. Its fate is still not known. Obvious are these facts to indicate that the respondent No. 1 was denied promotion for some extraneous reasons. He was victim of departmental bias and prejudices and even his right to file appeal against adverse remarks was denied to him by withholding communication of the adverse entries. The respondent, subject to his eligibility, had a legitimate right to get promotion on the basis of his performance in the past and his character roll containing annual entries was a secret and sacred document which could not be maintained against the settled norms of practice. The normal procedure for communicating adverse remarks is that the delinquent official should be Informed of his follies within one month from the date of awarding entries so as to enable him to put forth his version on the relevant points and make a request for expunctlon of remarks if they are against the realities. As discussed above, the petitioner was deprived of his right to know the adverse entries pertaining to the years 1974 and 1976 well In time. As discussed above, the petitioner was deprived of his right to know the adverse entries pertaining to the years 1974 and 1976 well In time. The principle underlying the necessity of communication of the adverse remark is that the delinquent official may ensure Improvement and perform better in future. If something wrong has been quoted, the wrong can be redressed by way of filing a representation. It appears that there was an endeavour on the part of some unscrupulous senior authority to condemn respondent No. 1 unheard. It is against the principles of natural Justice. ( 8 ) HOWEVER, we are not impressed with the submission of the learned counsel for respondent No. 1 that after confirmation, the adverse entries on record had lost their significance. It is true, as has been advanced during arguments on behalf of the petitioner that confirmation and promotion are two different matters and one cannot be the natural consequence of the other. An official may be confirmed in his cadre, still he may not be considered fit for promotion and vice versa. But a reasonable presumption can be drawn from the fact of respondent No. 1 being confirmed that no serious adverse entries were awarded to him so as to block his promotion. Confirmation is also an important milestone in the career of a Government official and the said event takes place on the basis of his past performance and any serious material can rule out the possibility of confirmation. Unless a person is confirmed on his original post, he is liable to be reverted of course in accordance with the rules applicable in a given case. So it may be inferred, in these circumstances, that nothing serious was in existence on record against the respondent No. 1 at the time of his confirmation and this coupled with other facts and circumstances would indicate that his candidature could not be easily rejected on the basis of unsuitability. Similarly, grant of selection grade to him supported his claim for promotion. ( 9 ) THE Honble Supreme Court in State of M. P. v. Bani Singh and another, 1990 (2) SLR 798. held that the adverse remarks which were not communicated to the person concerned, should not be taken into consideration at the time of his promotion and such adverse remarks cannot be considered for withholding his dues. ( 9 ) THE Honble Supreme Court in State of M. P. v. Bani Singh and another, 1990 (2) SLR 798. held that the adverse remarks which were not communicated to the person concerned, should not be taken into consideration at the time of his promotion and such adverse remarks cannot be considered for withholding his dues. It will be relevant to quote the following observation from the judgment of the Honble Supreme Court: "in fact even in respect of the adverse remarks which has been now quashed the respondent officer had made his own representation and the representation also was pending consideration at that time and it was disposed of only in December, 1986. The remarks, therefore, should not be taken to have become final so as to enable the Committee to take that remark into consideration. The deferring of the consideration in the meeting held on 26. 11. 1980, therefore, could not be considered as valid. " ( 10 ) THE record of this case appears to Indicate that the departmental selection committee held Its meeting from July 23, 1985 to December 26, 1985 and considered Anirudh Rais promotion also but deferred the same on account of there being adverse entries for the years 1974 and 1976 which were not communicated to him well within time. Since the respondent No. 1 was deprived of his right to file appeal against such adverse remarks, withholding of his promotion on their basis was unreasonable, illegal and based on arbitrariness. ( 11 ) IN view of all what has been discussed above, we are Inclined to hold that the impugned judgment of the Tribunal does not suffer from any legal infirmity. Accordingly the declaration issued by the U. P. State Services Tribunal was well within its Jurisdiction. ( 12 ) IN the result, this writ petition fails and it is hereby dismissed. However, there would be order as to costs.