Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 134 (JK)

Saleem Mohd. v. State Of J. &K.

2001-07-13

T.S.DOABIA

body2001
1. The principal grievances of the petitioner is that his Annual Performance Reports were initiated by Shri JK Sawhney, respondent No. 4 in the writ petition who was also to compete with the petitioner. It is submitted that on account of this factor, the Annual Performance Reports of the petitioner were written in a manner that these were down-graded. It is submitted that he has been graded as having outstanding and excellent record throughout and a drop in the performance and down grading was done by the aforementioned officer who according to the petitioner was also to compete with him when induction was to be made in the Kashmir Administrative Service. It is also submitted that in the matter of determining the merit of a candidate when he is inducted into Kashmir Administrative Service, there is no set criteria and policy and pick and choose method is being adopted. According to the petitioner had the reports been not written by aforesaid Sh JK Sawhney, the situation would have been different. 2. The stand by the State is that, no doubt, the Annual Performance Reports so far as the petitioner is concerned, were initiated by respondent No. 4, but this has not affected his cause. It is submitted that the rating which has been given to him is the same which was given to him earlier. It is submitted that respondent No. 4 has rated him excellent in certain parameters. It is further submitted that the report made by the initiating officer has to be endorsed by the reviewing authority and it is to be adopted by yet another officer, therefore, no bias can be attributed. Otherwise, it is urged that the criteria which was followed was just and proper and the petitioners cause has not suffered in any manner. 3. Thus, the basic argument which has been raised by the petitioner is that as the Annual Performance Reports were written by an officer who was ultimately to compete with him, therefore, damage was done to him at that stage. This led to his down grading. The respondent-State, however, has denied this assertion as has been noticed above. The learned counsel for the petitioner has placed reliance on a decision of the Supreme Court reported as AIR 1981 SC 2181, Dr. S.P. Kapoor Vs. State of Himachal Pradesh and others. This led to his down grading. The respondent-State, however, has denied this assertion as has been noticed above. The learned counsel for the petitioner has placed reliance on a decision of the Supreme Court reported as AIR 1981 SC 2181, Dr. S.P. Kapoor Vs. State of Himachal Pradesh and others. In the aforementioned case, the Supreme Court did observe that where reports are written by one of the competitor, then injustice is done to a civil servant. In para 31 of the judgment, it was observed that "therefore, it would not have been fair for the Departmental Promotion Committee to take into account the annual confidential reports made by adoctor who was competing" with the petitioner who had moved the High Court of Himachal Pradesh. Reference is also being made to another decision of the Supreme Court reported as (1996)2 SCC 363, U.P. Lal Nigam and others Vs. Prabhat Chandra Jain and others, wherein the view expressed is that if a particular officer is down graded then some material should be available on the file. If there is no reason mentioned for the change, then the down grading cannot be sustained. 4. The proposition of law laid by the Supreme Court in the case of Dr. S.P. Kapoor (supra) would be attracted to the facts of this case also. As a matter of fact, the broad proposition of law that no man should be a judge in his own cause would, to some extent, apply to the facts of this case. What was said by the Supreme Court in the case of A.K. Kraipak and others Vs. Union of India and others, 1969 (2) SCC 262, would also be attracted. In the aforesaid case, the Supreme Court expressed a view that, "it is against all canons of justice to make a man in his own cause. Even if he did not participate in the deliberations of the Committee when his name was considered, the fact that he was a member of the Selection Board must have had its own impact on the decision of the selection board, particularly when he participated in the deliberations when the names of his rivals were considered and was a party to the preparation of the list of candidates in order of preference. At every state of his participation in the deliberations of the Board there was a conflict between his interest and duty and it could not be believed that he could have been impartial". 5. In view of the above, this petition is dispose of with a direction to the respondent authorities to either get the annual performance reports of the petitioner, for the year in question re-written and re-apprised or in the alternative, consider the claims of the petitioner without taking note of the annual performance reports initiated by the respondent No. 4. To repeat, it is observed that if the Government is aware of the fact that if an officer is to ultimately compete with another officer, then it should be seen that the annual performance reports are not got initiated, approved and written from such an officer. The salutary principles laid down in S.P. Kapoors case, noticed above, should be observed. Let the exercise of considering the claims of petitioner be completed within a period of three months from the date, a copy of this order is made available to the respondent authorities by the petitioner. Disposed of as such.