ORDER Petitioner Satya Narayan Kumawat has filed this writ petition for quashment of impugned adverse remarks for a short period from 01.04.2008 to 11.08.2008, recorded by accepting authority and downgrading of entry 'very good' recorded by reporting officer to that of 'satisfactory' by reviewing authority and 'unsatisfactory' by accepting authority, respectively on the ground that the same are contrary to instructions of State Government. The adverse remarks were communicated to petitioner vide letter of communication dated 13.01.2010 (Annexure-2). Representation filed by him against the same was rejected vide order dated 07.09.2010 (Annexure-8). Both these letter and order are also assailed in writ petition. Facts of the case are that petitioner at the relevant time was working as Assistant Mining Engineer, Mining Department, Kotputli with respondent Department during aforesaid period. According to petitioner, he was never conveyed any adverse remarks except aforesaid period. His reporting officer though, as per his knowledge, gave him 'very good' rating but the reviewing authority has disagreed with him by observing that “Reporting officer has not given the targets & achievements in first part nor he has mentioned the tours conducted by him or mines inspected by him.” It is argued that no details have been given abut the said remark as it pertains to performance of short period of four months only and the reviewing authority has not substantiated as to on what basis he arrived at such conclusion. Besides, the remark could not be considered as adverse in the eye of law as eventually the reviewing authority also awarded 'satisfactory' grading to the petitioner. The accepting authority, however, has further observed with assessment that his performance has been below the targets assigned. He lacks capability to function independently. The dues and number of applications pending are quite large including audit/PAC paras. Illegal mining was rampant in Kotputli and therefore he rated his performance to be unsatisfactory. Shri S.P. Mathur, learned counsel for petitioner, argued that petitioner was neither given nor supplied any specific details nor was allowed to represent against adverse remarks. No advisory was ever issued to him nor any deficiency or fault pointed out so as to enable him to improve his performance. Petitioner therefore submitted a representation to the respondents for expunging the aforesaid remarks, vide Annexure-3. No advisory was ever issued to him nor any deficiency or fault pointed out so as to enable him to improve his performance. Petitioner therefore submitted a representation to the respondents for expunging the aforesaid remarks, vide Annexure-3. Learned counsel for petitioner argued that there was no occasion for respondent no.3 the Director, Department of Mines & Geology, Udaipur, the accepting authority, to seek comments of reviewing authority on such representation. The reviewing authority had sent his response to Department of Personnel, vide letter dated 26.03.2010 (Annexure-5), to justify his remarks with details of tours and inspection carried out by the petitioner, in the proforma of above APAR. The comments of the reviewing authority do not state that petitioner had not toured or visited the mines at all and also do not state as to what were the targets, which he failed to achieve or fulfill. The reviewing authority has not substantiated his opinion by supporting material or guidance or advisory given to the petitioner for tour and inspection of mines. It was argued that the reporting officer is immediate higher officer of reportee, who personally observe his performance and gives remarks about his working. Remarks made by reviewing authority and accepting authority in the present case are made on hearsay and are not based on any material. Petitioner was not served with any warning, advisory or memo to improve his performance even by them. Learned counsel for petitioner has, in support of his case, relied on a judgment of this court in Roop Singh Jodha vs. State of Rajasthan and others, 2007 (1) WLC (Raj.) 70, and Ashok Iyer vs. State of Rajasthan and others, 2010 WLC (Raj.) UC 119, and other number of judgments of the Supreme Court referred to therein. He has also relied on instructions issued by Department of Personnel, Government of Rajasthan, in the year 2008 directing that reporting officer should not form an opinion or arrive at conclusion on insufficient data or hearsay. In Clause No. 11 (5) of the Instructions, a detailed procedure has been provided for recording adverse remarks, which has not been followed. Clause 12 thereof refers to responsibility of reviewing officer, but that too has not been followed. In Clause No. 11 (5) of the Instructions, a detailed procedure has been provided for recording adverse remarks, which has not been followed. Clause 12 thereof refers to responsibility of reviewing officer, but that too has not been followed. Shri Zakir Hussain, learned Additional Government Counsel, appearing for respondents, opposed the writ petition and submitted that work of the petitioner was not upto the expectation of accepting authority, which is clearly borne out from the figures given by petitioner himself in Annexure-3, which shows that his work was not satisfactory and lot of pendency of applications as well as dues were there. Target given for the year 2008-09 was Rs.900 lacs, whereas he could achieve only of Rs. 843.27 lacs. The remarks given in APAR of petitioner by the reviewing authority are based on the material. It was the duty of petitioner to have given in his APAR proforma specific details of the work done by him. The Principal Secretary to the Government, Mines Department, who is the accepting authority, has given justification with regard to communication of adverse remarks in the APAR, which were also examined by the Government and the decision has been taken by the competent authority to retain the adverse remarks. The accepting authority can change the remarks given by reporting/reviewing authority. The accepting authority has right to evaluate the work done by reportee. I have bestowed my thoughtful consideration to the rival submissions and perused the material on record. This Court in Roop Singh Jodha, supra, in para 8 of the report held as under- “8. It is trite law that an officer entrusted with duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, on statement of facts, an overall assessment of the performance of the Reporting Officer. However, at the same time, the Reporting Officer before forming an opinion adverse to the Subordinate Officer should confront the officer with such information and then only the same may be made part of the report. However, at the same time, the Reporting Officer before forming an opinion adverse to the Subordinate Officer should confront the officer with such information and then only the same may be made part of the report. Reference in this connection may be made to the following observation of the Hon'ble Apex Court in State of U.P. vs. Yamuna Shanker Misra reported in 1997 (4) SCC 7 :- “The Officer entrusted with the duty to writ confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an over all assessment of the performance of the Subordinate officer. It should be founded upon facts or circumstances. Before forming an opinion to be adverse, the Reporting Officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him.” The Apex Court in Union of India vs. E.G. Nambudiri reported in 1991(3) SCC 38 held as under:- “Therefore, in the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily, it must act in a fair and just manner. It is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. However, it is does not mean that the administrative authority is at a liberty to pass orders without there being any reasons for the same. In Governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion, if such an order is challenged in a Court of law, it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. If is always open to an administrative authority to produce evidence aliunde before the Court to justify its action.” The Supreme Court in M.A. Rajasekhar vs. State of Karnataka reported in 1996 (10) SCC 369 were considering somewhat similar remarks recorded in the confidential report of the appellant that he “does not act dispassionately when faced with dilemma” it was in this context their Lordships in para no.4 of the judgment observed as under:- “It is now settled law that object of making adverse remarks is to assess the competence of an officer on merits and performance of an officer concerned so as to grade him in various categories as outstanding, very good, good, satisfactory and average, etc. The competent authority and the reviewing authority have to act fairly or objectively in assessing the character, integrity and performance of the incumbent.” Having recapitulated the law on the subject, their Lordships in para no.5 further observed as under:- “It was found that his integrity has not doubted and his work also in all those respects was found to be satisfactory. Under those circumstances, the remarks that he “does not act dispassionately when faced with dilemma” must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in a dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he acted upon. Since this exercise has not bee done by the respondents, if would be obvious that the above adverse remarks was not consistent with law.” The Supreme Court in Sukhdeo vs. The Commissioner Amravati Division, Amravati & another reported in JT 1996 (5) SC 477 while following the earlier judgment in State Bank of India etc. vs. Kashinath Kher & other etc. (JT 1996 (2) SC 569 at 578 observed as under:- “The controlling officer while writing confidential and character role report, he should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected of from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew of making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact that would form material basis in support of the adverse remarks. It would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact that would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in waiting for improvement and yet was not availed of so that it would form part of the record.” This Court had an occasion to examine the instructions regarding Annual Performance Appraisal, 1976 in Richpal Singh vs. State reported in 1992(2) WLC 669. While following the principles laid down by Hon'ble Apex Court in State of Haryana vs. P.C. Wadhwa, AIR 1987 SC 1201 , this Court held that even if the administrative instructions issued by the Government are not having statutory force, they must be substantially complied with. The Government which had issued the instructions and the officers, who are bound to act in conformity with the administrative instructions. Those, whose actions are the actions of the Government, must be held to be bound by these administrative instructions. The administrative authorities, which declare that their actions will be governed by certain standards must adhere to those standards. Arbitrary departure from such instructions will vitiate the action taken by such authorities. Faced with the problem of non adherence to such instructions especially in the context of the cases where positive reports given by the Reporting Officers are down graded or are recorded in the negative form by Reviewing/Accepting Officer, the Government has issued a circular on 3.4.1998, which is worth reproduction:- “It has been observed that the APARS of the State Service Officers are sometimes downgraded by Reviewing/Accepting authority, without giving any reasons or justifications and it becomes difficult to properly defend such cases in Courts. The Supreme Court has also recently held that proper reasons must be recorded while down grading the APAR rating of a Reportee Officer. The Supreme Court has also recently held that proper reasons must be recorded while down grading the APAR rating of a Reportee Officer. Accordingly it has been decided that the Reviewing/Accepting authorities should invariably record detailed reasons/justifications if APARs of the Reportee Officers are downgraded by them.” Instructions issued by Department of Personnel, Government of Rajasthan, in the year 2008, provide that while commenting upon the remarks made by reporting officer, the reviewing authority should not form an opinion or arrive at conclusion on insufficient data or hearsay. In Clause No. 11 (5) of the Instructions, a detailed procedure has been provided for recording adverse remarks, which has not been followed. Clause 12 thereof refers to responsibility of reviewing officer and at its out set it has been stated in clause (1), but that too has not been followed. A two judge bench of Supreme Court in U.P. Jal Nigam & other vs. Prabhat Chandra Jain & other, (1996) 2 SCC 363 , has held that the downgrading by the Review/Accepting Officer in comparison to his previous grading without notice or opportunity of hearing to the employee concerned is illegal, but in Union of India & another vs. Major Bahadur Singh, (2006) 1 SCC 368 another two Judge bench of the Supreme Court took the contrary view. Subsequent thereto, the two judge bench of Supreme Court in yet another case in Dev Dutt vs. UOI and others, (2008) 8 SCC 725 , had the occasion to consider the question of communication of the year in the APAR of public servant. In that judgment, the Supreme Court re-visited all its previous judgments and concluded that every entry of APAR should be communicated to the employee within reasonable period, whether it is 'fair', 'good' or 'very good' entry. A three-Judge bench judgment of the Supreme Court in Abhijit Ghosh Dastidar vs. Union of India & others, (2009) 16 SCC 146 , approved of the reasoning given by Dev Dutt, supra and held in para 8 as under:- “Coming to the second aspect, that though the benchmark “very good” is required for being considered for promotion admittedly the entry of “good” was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having “very good” in the previous year. The entry of 'good' should have been communicated to him as he was having “very good” in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries “good” if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” In view however of the conflict in the decisions, reference was made to the three Judge bench of the Supreme Court in Sukhdev Singh vs. UOI & others, (2013) 9 SCC 573 . The Supreme Court in Sukhdev Singh approved of the judgment in Dev Dutt, supra and Abhijit Ghosh Dastidar, supra and held that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for up-gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. Earlier judgments of Supreme Court in Satya Narain Shukla vs. Union of India & others, (2006) 9 SCC 69 and K.M. Mishra vs. Central Bank of India & others, (2008) 9 SCC 120 taking a contrary view were declared to be not laying down a good law. Earlier judgments of Supreme Court in Satya Narain Shukla vs. Union of India & others, (2006) 9 SCC 69 and K.M. Mishra vs. Central Bank of India & others, (2008) 9 SCC 120 taking a contrary view were declared to be not laying down a good law. In the light of aforesaid law, it is found that adverse remarks recorded against petitioner that 'petitioner has not given the targets and achievements in first part nor he mentioned the tours conducted by him or mines inspected by him', by reviewing authority and further adverse remarks by accepting authority that 'performance of petitioner has been below the targets assigned and he lacks capability to function independently', have not been recorded with reference to any specific instance showing as to how he did not perform his duties satisfactorily, did not achieve the target and did not inspect the mines. In fact the reporting officer has rated him as 'very good'. The reviewing authority has not recorded that there was illegal mining rampant in Kotputli and quite large number of applications were pending and dues were not recovered. There is no reference to any advisory or memos given to petitioner at any point of time in past to improve his performance. Remarks made by reviewing authority and accepting authority substantially downgraded him from 'very good' as the assessment given by the reporting officer to respectively 'satisfactory' and 'unsatisfactory'. If at all the accepting authority wanted to record adverse remarks which had the effect of further downgrading the remarks given by the reviewing authority, he should have given the instances with reference to which such remarks were made and given notice to petitioner with reference to instances on the basis of proposed remarks were to be made. In view of conflicting decisions, reference was made to a three-Judge-bench judgment of the Supreme Court in Sukhdev Singh, supra, wherein the Supreme Court approved of judgments in Dev Dutt, supra and Abhijit Ghosh Dastidar, supra, and held that the view taken therein that every entry in ACR must be communicated to a public servant within a reasonable period, is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same, which enables him/her to make representation for up-gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. Earlier judgments of the Supreme Court in Satya Narain Shukla vs. Union of India & others, (2006) 9 SCC 69 and K.M. Mishra vs. Central Bank of India & others, (2008) 9 SCC 120 taking a contrary view were declared to be not laying down a good law. In view of above, writ petition is allowed. The letter of communication dated 13.01.2010 (Annexure-2) conveying the adverse remarks to petitioner, and the order dated 07.09.2010 (Annexure-8) rejecting the representation of petitioner against the adverse remarks in his APAR, are quashed and set aside. The grading 'satisfactory' recorded by reviewing authority and downgraded to 'unsatisfactory' by accepting authority for the period from 01.04.2008 to 11.08.2008, are quashed. The entry 'very good' made by the Reporting Officer in the APAR of petitioner for that period is ordered to be retained throughout, thus entitling him to review consideration of his promotion and also consideration of recommendation of the DPC if any of his junior has been promoted on that basis during the pendency of the writ petition. Compliance of the judgment be made within four months from the date copy of this order is produced before the respondents.