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2003 DIGILAW 1615 (RAJ)

Union of India v. Gopak Singh Rathore

2003-12-03

O.P.BISHNOI, RAJESH BALIA

body2003
JUDGMENT 1. - A detailed order was passed by this Court on 27.8.2003 after examining the records of Annual Appraisal Reports of the respondent-petitioner Gopal Singh Rathore and finding that the real adverse report which resulted in his supersession in the promotional exercise for vacancies in 1991-92 was not communicated, instead a favourable report made by the Reporting Officer had been communicated in the ACRs of 1989-90. Consequently, the following directions were issued by the Court: "In the aforesaid circumstances, the actual remarks noticed by the Reviewing Officer and Sr. Reviewing Officer DIG and IG on the basis of which the adverse remarks "to be kept under watch" was recorded, be communicated to the petitioner and his representation may be sought within a period of four weeks and the said representation may be decided within further four weeks keeping in view the fact that since thereafter, he has been promoted to next two higher posts consecutively." 2. Today, an application has been made communicating to the Court that since the order dated 27.8.2003, the adverse report has been communicated to the respondent and after receiving his representation and examining the case in detail, his representation has been rejected and was communicated to the respondent vide communication dated 14.11.2003. However, the relevant papers relating to the communication, consideration and the communications letter have not been placed on record along with the application. 3. The learned counsel for the appellant stated during the course of hearing that he has the record of the proceedings with him and he placed the same for perusal of the Court. 4. Mr. Joshi, learned counsel also placed on record the adverse report communicated to the petitioner. 5. From the perusal of the record of the consideration, the following facts are revealed. 6. Vide communication dated 9.10.2003, the substance of remarks recorded in Confidential Report was communicated for the period ending 31.3.1990 as under: ".....A lean and thin officer who was employed in the border area where his performance was satisfactory. There were certain 'G' complaints about his connivance with the smugglers but could not be substantiated for lack of evidence. An average officer An average type. Complaints were received against him while he was posted at Hill of getting mixed up with the smugglers....." 7. There were certain 'G' complaints about his connivance with the smugglers but could not be substantiated for lack of evidence. An average officer An average type. Complaints were received against him while he was posted at Hill of getting mixed up with the smugglers....." 7. A representation was made by the respondent pointing out that the adverse remarks are not communicated within time and it was developed on certain complaints by 'G' Branch which could not be substantiated for lack of evidence and even authority recording final remarks is not convinced about the correctness of the remarks, therefore, the remarks do not fall within the category of adverse remarks. It was also urged by the respondent that the complaint made was due to some misunderstanding or some biased thinking with motive to spoil his career. 8. The facts about the subsequent promotions have also been noticed by the Court about which there is no dispute. 9. The consideration shows that the name of officer was in DI list for )0-93 period. This was the reason of his supersession. After his name was taken out of the DI list, he was considered for D.P.C. and subsequently promoted. In view of the facts of the case, it was recommended that his 25 representation may be rejected. 10. The record of proceedings also shows that the adverse remarks endorsed by RO and AA was based on the G report and the G Branch could riot produce any proof and the RO/AA on endorsement of these remarks also could not substantiate their version. The CBI during enquiry also could not make any breakthrough due to lack of evidence against the officer. As such, his name which was included in the list of officers having DI (doubtful integrity) for the year 1990, was deleted from the list of DI (as on 1993). After three years, Shri Gopal Singh Rathore was promoted to the rank of DC w.e.f. 1995 as per recommendation of DPC in 1995. 11. The aforesaid report clearly goes to show that there was no material before the officers concerned to substantiate the entry of DI in the -.CR of the respondent. 12. We are conscious of the fact that the assessment of officer's personality and character is subjective in nature and not ordinarily open to judicial review. 11. The aforesaid report clearly goes to show that there was no material before the officers concerned to substantiate the entry of DI in the -.CR of the respondent. 12. We are conscious of the fact that the assessment of officer's personality and character is subjective in nature and not ordinarily open to judicial review. However, howsoever subjective nature of satisfaction may be, it has to be founded on some existing material with some nexus with the forming of such satisfaction. As a matter of fact, the circumstances and the material which has gone into consideration is the complaints which could not be substantiated even after the enquiries conducted by 'G' Branch of the petitioner Department as well as by CBI. Delisting him from DI list was not because of the expiry of period but because of non-substantiation of grounds to sustain the suspicion entertained by the reviewing authority in the first instance and, therefore, in our opinion the rejection of representation as such founded without application of mind to the core fact whether there was any material to base satisfaction about Doubtful Integrity of the officer so as to sustain the withholding of promotion in 1991-92 notwithstanding on their own showing no reasonable ground existed for maintaining the adverse remarks in 1989-90. 13. In our opinion, the entry made in APAR "to be kept under watch" was more in the nature of a caution, until the complaints against respondent could be verified and substantiated with some material and only thereafter to take action in that respect. 14. The communication of adverse remark clearly goes to show that but for the unsubstantiated complaints, the conduct of the officer was satisfactory. The record also shows that final opinion recorded was to keep a to watch and not of Doubtful Integrity. This also suggests that the complaints were taken in tentative nature and no final opinion was formed about integrity of the officer. In these circumstances, when representation was received on highly belated communication of adverse ACR, that too through intervention of Court more than once, the material record shows that the complaints 1 s referred to in ACR could not be substantiated by any of agency-whether departmental or CBI investigation, and the record of officer was otherwise unblameworthy, is apparent from the fact of successive promotions since 1995. No adverse record prior to or posterior to 1989-90 has been referred to. No adverse record prior to or posterior to 1989-90 has been referred to. In these circumstances, no reason existed to sustain the entry by rejecting the representation. It appears that merely out of complacent view, that the officer has since already been promoted, there is no need to remove the adverse entry in question. 15. This approach obviously is not sustainable. The said un-communicated adverse entry did result in adverse impact on the career-graph of the incumbent by denying him promotion in 1991-92 on non-existing, non-sustainable ground, resulting advancement (sic.) in career. A just State cannot afford to act unjustly and then abstain from remedying injury which is within its province to remedy. It is its duty to do so. 16. The learned counsel for the appellant has sought to urge that once a person's name finds place in DI list, for three years he cannot be considered for promotion and thereafter once his name is taken out of DI list, he may be considered for promotion but in any event, he cannot be considered with effect from an earlier date and for that purpose he placed reliance on para 7 of the Scheme for "Preparation, Maintenance and Custody of List of Public Servants of Gazetted Status of Doubtful Integrity" issued under the recommendations made in the statement tabled on the Lok Sabha on 10.8.1961 and in Rajya Sabha on 24.8.1961. 17. A perusal of the scheme goes to show that in the first instance placing the name of respondent in the DI list itself was not in accordance with act the scheme. Para 2 of the scheme clearly states that the list will include the names of those officers only who, after enquiry or during the course of enquiry have been found to be lacking integrity. As the noting of consideration goes to show, neither after enquiry nor during the course of enquiry, it was ever found that the respondent was lacking integrity. 18. Clause 7 of the Scheme further shows in no uncertain terms that prohibiting period of three years commences only from the date he has been punished in disciplinary proceedings or from the date of conviction in the trial Court. The period of prohibition cannot otherwise be held against the incumbent to make supersession on unsubstantiated opinion absolute and so beyond remedy. It would be apposite to reproduce clause 7 here: "7. The period of prohibition cannot otherwise be held against the incumbent to make supersession on unsubstantiated opinion absolute and so beyond remedy. It would be apposite to reproduce clause 7 here: "7. Once the name of an officer has been entered in the list for good and adequate reasons, it will not be removed until a period of three years has elapsed. The period of three years for which the name will be current on the list will count from the date of punishment in disciplinary proceeding or from the date of conviction in a Court trial. On the conclusion of this period the cases of such officers may be reviewed by the Ministry/Department concerned in consultation with the Central 5 Bureau of Investigation and if during the intervening period there has been no further complaint or information against the officer touching on his integrity, the name may be removed from the list. If at the time of review, it is proposed to continue the name of an officer on the list cogent reason for doing so should exist." 19. A combined reading of Para 2 and 7 of the Scheme leads to only one conclusion that name of a person is placed in Di list only after complaint of Doubtful Integrity is substantiated through some enquiry so as to make action taken on the basis of mere complaints absolute. In fact, the Scheme relied on by the appellant puts it beyond the pail of doubt that adverse effect is of opinion on unconfirmed complaints is not sufficient to put a person on list to deny him promotion for three years in absolution. Placing the name of a person in DI list is an exercise of objective satisfaction after enquiry and investigation and not otherwise. 20. It is nobody's case that the respondent was ever subjected to any disciplinary proceedings in which any punishment was imposed on him or he ,vas convicted in criminal trial. On the contrary, it is more than obvious that in successive enquiry by G Branch and CBI, nothing could be found against the incumbent. "For Good and Adequate reason" in para 7 in its totality can only be referable to substantiated complaints. Therefore, it 25 appears that under a misconceived perception, opinion about adverse integrity has been recorded about enlisting the officer on the DI list for three years. "For Good and Adequate reason" in para 7 in its totality can only be referable to substantiated complaints. Therefore, it 25 appears that under a misconceived perception, opinion about adverse integrity has been recorded about enlisting the officer on the DI list for three years. Entry in DI list is only after conclusion of enquiry or during the course of enquiry where sufficient material may have already come on record to express doubt on the integrity of the incumbent. However, in the present 30 case, this basic pre-condition of placing or considering the incumbent on the list of DI is missing. 21. Consequently, the plea that because incumbent was in DI list, he cannot be considered for promotion for three years cannot be sustained as on their own showing by appellants entry of Doubtful Integrity in the year1989-90 has been made without foundation and the representation rejected only because the name of the petitioner-respondent was listed in DI list and he has been considered after his name was taken out from DI list and on finding suitable, he has been promoted. This betrays total non-application of mind. 22. The fact that subsequently he has been promoted cannot be a ground for rejecting the representation of petitioner-respondent. The respondent has been denied consideration and promotion at the time when it was due to him and he has suffered supersession for no fault of his. He cannot be allowed to suffer permanently for the erroneous view of the 45 Scheme taken by the appellant as we have found that even after communicating the adverse entry, from the notings of consideration of the case, it is established beyond doubt that no material was before the concerned authorities for placing the name of the petitioner-respondent in DI list and to deny him promotion permanently with effect from a date he was so otherwise entitled to be promoted. The legitimate claim of the petitioner-respondent cannot be denied. 23. On the material placed before us, the only conclusion possible is that Adverse Entry for 1989-90 must be removed from the record of the petitioner 24. The consequence of obliterating the entry of Doubtful Integrity must follow, namely that he should be considered for promotion against the vacancies of 1991-92 without taking into consideration the adverse entry in question and with everything otherwise being equal, he cannot be made to suffer supersession by his juniors. The consequence of obliterating the entry of Doubtful Integrity must follow, namely that he should be considered for promotion against the vacancies of 1991-92 without taking into consideration the adverse entry in question and with everything otherwise being equal, he cannot be made to suffer supersession by his juniors. It has been recorded even in ACR that his conduct is otherwise satisfactory arid subsequent course of events suggest that except in 1989-90. nothing adverse has been found in his record and he has been promoted consequently to the higher post since 1995. 25. As a result of aforesaid discussion. no ground for interference in the judgment of learned Single Judge under appeal is made out. 26. Accordingly, the appeal fails and is hereby dismissed.Appeal Dismissed. *******