M. R. CALLA, J. - (1.) THIS writ petition is directed against the order Ex. 3, dt. 1/9/1989 whereby the adverse remarks in the ACR for the year 1982 were conveyed to the petitioner and the order dated 27th January 1990, Ex. 5, whereby the petitioner's representation dated 11/9/1989 against adverse remarks was rejected.
(2.) THE petitioner in this case is a member of Rajasthan Higher Judicial Service and his case is that he was appointed to the Rajasthan Judicial Service on 1. 06. 1971 and was promoted as Civil Judge and then as Additional Chief Judicial Magistrate and was further promoted as Additional District & Sessions Judge in the cadre of RHJS vide order dated 11. 08. 1987. By a communication dated 1. 09. 1989 Ex. 3, the petitioner was informed that while assessing his work for the year 1982, it was observed in his Annual Confidential Report as under - "you write judgments ordinarily & not laboured judgments. You never bother yourself in the matters of keeping control over the office, administrative capacity and tact. You cannot be depended upon for jobs assigned to you. " Against these observations, the petitioner submitted a representation, Ex. 4, dated 11. 09. 1989 and the same was rejected as per the communication dated 27. 01. 1990, Ex. 5. The petitioner has submitted that the remarks were conveyed to him after the expiry of a period of seven years when the same have become ineffective and inoperative because in spite of these observations he was promoted to the post of Civil Judge and Additional Chief Judicial Magistrate in 1983 and was further promoted as Additional District and Sessions Judge in the year 1987. It has been submitted that in the year 1982, from April to December,- the period to which the Annual Confidential Report relates, he was posted as Roadways Magistrate. It has been alleged that the Reporting Officer had no cause of complaint regarding the functioning of the petitioner nor he had found anything lacking in his control. No staff attached with the Roadways Magistrate was appointed by the District Judge and the members of the said staff were from the Department of Roadways and were directly under the control of the Roadways authorities; and since the control over the staff was with the Roadways, the question of lacking control on the part of the petitioner did not arise. It is also alleged that the Reporting Officer had not appointed him for functioning in connection with the administrative job. In para 17 of the petition, the petitioner has alleged that for the reasons submitted in his representation, Ex. 4, it is clear that the communication of these remarks was an act of bias and prejudicial attitude of respondent No. 1. In the representation Ex. 4, it has been stated that the petitioner does not know as to whether the adverse observations have been by the learned District Judge or the Hon'ble High Court, but he presumes that the same must have been made by the then learned District Judge and, the presumption is based on the premises that the then District Judge felt annoyed with the petitioner on account of his inability to abide by his directions in some matters relating to providing vehicle without charge. The petitioner has referred to the particular incident dated 11. 11. 1982 when he was asked to provide vehicle free of charge for one Shri Majumdar, Deputy General Manager, Heavy Electricles and which he could not arrange. According to the petitioner, this caused extreme annoyance to the learned District Judge and, according to the petitioner, he has serious apprehension that the adverse observations must have been made by him. The petitioner has also alleged that the then District Judge had no occasion to find his judgment as unlaboured one as, in 1982, he did not hear any appeal from the judgment or order, nor he heard any revision against any judgment or order passed by the petitioner and further that there was no appellate Court at Ajmer or at any other place which found his judgment below standard or unlaboured one. It has been further stated by the petitioner that two of his judgments had been found to be outstanding, but he has not given the period relating to these judgments. The petitioner has asserted that the observation made about the quality of judgment were wholly unjustified and were not supported by any material on record. Relating to the second part of the observations, it has been stated that there had been no cause of complaint regarding his functioning and no such defect was pointed out by the District Judge with regard to lack in his control. The third part of the observation has been assailed by the petitioner by saying that it was only in relation to his inability to provide vehicle free of charge. A reply to the writ petition was filed on behalf of respondent No. 1 The petitioner's case has been sought to be traversed and, it has been stated that merely because the staff attached with the Roadways Magistrate was not appointed by the District Judge does not mean that the officer holding the Court of Roadways Magistrate had no administrative control and that the observation relating to lack of control over the staff made by the District Judge was based on his own assessment. It has been further stated that the observation that the petitioner cannot be depended upon for the job assigned to him, was also based on an over-all assessment of the District Judge being the immediate superior officer having the direct control over the subordinate Judicial Officers, who has many occasions to observe the things that give conclusion as to whether the officer is to be depended upon for the job assigned to him or not. The allegations of bias and prejudice levelled against the respondent towards the petitioner have been denied and it has been submitted, under the heading of 'additional pleas; in the reply that in 1982 when the petitioner was posted as Judicial Magistrate' Roadways. Ajmer, the concerned District and Sessions Judge, Ajmer had narrated the observations in question in the ACR of the petitioner for the year 1982 after observing the records, orders and judgments and having acquainted with the facts regarding integrity, relations with Bar & with regard to the working style as such, writing of order and judgments and administrative capacity to control over the office and the remarks were based on the observations of the District and Sessions Judge who was immediate superior officer as well as the appellate authority over the petitioner's work. It has been further stated in the additional pleas, in para 2, that the representation of the petitioner was rejected after due consideration. The District Judge has rightly remarked in the ACR of 1982 that the petitioner writes judgments ordinarily and not laboured judgments and further that in the year 1982, six orders under appeal came up for hearing before the District and Sessions Judge and all of them were found to be of 'average standard '8'. Apart from that, being the immediate superior authority, the District Judge happened to observe the orders, judgments and working of the petitioner and on that basis he made the remarks. It has also been stated in para 10 of the reply that the petitioner's representation had been examined by the Committee consisting of three Hon'ble Judges of the High Court and after due consideration, the Committee did not find any merit in the representation of the petitioner. Therefore, the representation was rejected and that it was a misconceived notion of the petitioner that the communication of rejection of representation against adverse remarks must contain reasons, as it was not a quasi judicial function. It has been further stated in para 11 that the grievance that an opportunity of personal hearing ought to have been given is untenable. It is also denied that the communication Ex. 5, was sent to the petitioner without application of mind because the matter has been considered by a committee consisting of three Judges. The Committee examined the record of the petitioner together with the representation and after careful examination, the Committee recommended rejection of the representation of the petitioner. This recommendation was accepted by the Hon'ble Chief Justice and then the same was communicated to the petitioner. A rejoinder to the reply has also been filed stating there in that according to the proforma prescribed under the Rules, a copy of which has been filed as Ex. 6 with the rejoinder, would reveal that only the standard judgments are marked as 'b' Grade. Average standard judgments fall between Standard Judgments and below standard judgment and they are marked as judgments with no comments. In the light of this, the two A grade judgments, read with the petitioner's all judgments of 1982 of 'b' Grade, the order of rejection by the alleged Committee was totally unjust and unjustifiable. In support of his submission made in his representation Ex. 4, the petitioner has placed on record a copy of the letter dated 11. 11. 1982, addressed to Traffic Inspector, Roadways, Shri Radha Mohan. The petitioner has stated in para 6 of the rejoinder that the Reporting Officer just after three months of drawing the petitioner's ACR became the Registrar of the Rajasthan High Court and he intentionally did not put the ACR before the Chief Justice. because he knew it very well that his Lordship, the Chief would term it as baseless and motivated. Shri R. M. Lodha, appearing on behalf of the High Court, respondent No. 1, has placed before me an extract copy of the report of the Committee which considered the representation of the petitioner and I have gone through the same.
(3.) REGARDING the first contention which has been raised by Shri Samdaria on behalf of the petitioner that the remarks were recorded against him on account of prejudice against him on the part of the Reporting Officer, first of all, it may be observed that the petitioner has not ventured to implead the Reporting Officer as a party to this writ petition and, unless and until the officer against whom the allegations of malafides are levelled is impleaded as a party, such allegations of mala fides cannot be gone into, more particularly when the pleadings in this case make it clear that the petitioner knew it that it was the concerned District Judge at Ajmer during the relevant period, who was his Reporting Officer and only in that reference he had made all these allegations. The failure on the part of the petitioner to implead the Reporting Officer as a party by name is by itself a sufficient ground not to go into the allegations of mala fides. However, I may also deal with the same because submissions in this regard had been made by Shri Samdaria at length. He has laid much stress on the document, Ex. /7 letter dated 11. 11. 1982, and has submitted that the remarks have been recorded against him merely because he had failed to make arrangements for vehicle asked for by the Reporting Officer. Document Ex. 7 is nothing, but a letter sent by the petitioner himself to the Transport Inspector stating that the Sessions Judge had desired the arrangements of a vehicle. In his letter, the petitioner has not mentioned that the Sessions Judge had desired to arrange the vehicle for site seeing of the Deputy General Manager Shri Mazumdar without payment of charges. Moreover, one fails to understand as to how the Sessions Judge had anything to do with the Deputy General Manager of Heavy Electricals. In any case, this letter sent by the petitioner does not make reference to the requirement of the Sessions Judge for vehicle without any charges. It is, of course, true that the Inspector has recorded on the petitioner's aforesaid letter dated 1l. 11. 1982, Ex. 7, that he cannot arrange the vehicle without charges. But that is a note by the Inspector and it does not lead and can never lead to the conclusion that the Sessions Judge had asked for arrangement of the vehicle without any charge. Except this document, there is no other contemporarious evidence in support of the petitioner's case of mala fide on the part of the Reporting Officer and the petitioner's allegations that the Reporting Officer had become the Registrar after three months of drawing the petitioner's ACR and he intentionally did not put the ACR before the Chief Justice is wholly baseless. This allegation was not levelled by the petitioner in his representation Ex. 4 nor such an allegation was levelled in the writ petition. This allegation has been levelled for the first time in the rejoinder and, on the face of it, it appears to be an after-thought. The petitioner should have observed reasonable restraint before levelling such allegations to build up a case of malafide. Thus, I hold that the observations made in the petitioner's ACR. cannot be said to have been recorded out of prejudice on the part of the Reporting Officer against the petitioner. Coming to the correctness of the remarks, as had been recorded against the petitioner and which have been assailed here, Shri Samdaria has submitted that there was no material on the basis of which an opinion could be formed against the petitioner that he writes judgments ordinarily and his judgments were not laboured judgments. It is borne out from the reply filed on behalf of respondent No. 1, para 2 of the additional pleas, that in the year 1982 six orders under appeal came up before the District Judge, in hearing and, all of them were found to be standard B. Prima facie, Ex. 6, which has been placed on record by the petitioner, goes to show that there are three categories A, B and C. 'a' stands for above standard; 'b' for standard and 'c' for below standard. In this view of the matter, if all the judgments were of standard, 'b' and there was not a single judgment, below standard, it could not be included as an adverse remark in the ACR that the petitioner writes judgment ordinarily and not laboured judgments. Unless the judgments are below standard, there is no question of any observation regarding the quality of the judgment being regarded as an adverse remark and, I find that this part of the remark "you write judgments ordinarily and not labour judgment', was uncalled for and the same deserves to be expunged and, it could not be regarded as an adverse remark against the petitioner. Regarding the next part of the remark that, "you never bothered yourself in the matters of keeping control over the office, administrative capacity and tact",, it has been submitted that since the staff attached with Roadways Magistrate is not provided by the District Judge, it was a staff of the Roadways Department itself, there was no question of petitioner's effective control thereupon in the day today working. The factual position that the staff was never provided by the District Judge and had been provided by the Roadways Department itself has not been disputed. As per the reply, no material whatsoever has been placed on record to substantiate the allegation of lack of control over the staff, administrative capacity and tact. All that has been said is that it was the assessment of the Reporting Officer and he must have given these remarks on the basis of his own assessment. Except for the day today working, if the petitioner is not required to keep any control over the staff attached with the Roadways Magistrate Court, there was no occasion for the petitioner to keep any control over such staff and, even otherwise there is no material to sustain this part of the remark, more particularly when the petitioner was not required to bother for such control, nor he was supposed to exhibit any skill with regard to the administrative capacity and tact, nor to keep control over such a staff. Hence, I find that this part of the remark was also unwarranted. ;