HASAN, J. - (1.) THE petitioner seeks two fold reliefs in this writ petition, viz. (i) for quashing an adverse remark in his Annual Confidential Report for the year 1983 conveyed to him vide Annexure 5, dated September 13, 1989, and (ii) for promoting him to the post of Civil Judge-cum-Addl. Chief Judicial Magistrate from the date his juniors were so promoted, with all other consequential benefits.
(2.) UNDISPUTED facts are thus. The petitioner was appointed as Munsif & Judicial Magistrate and was confirmed. Vide order (Ann. 3) dated August 3, 1989, six Judicial Officers holding posts of Munsif & Judicial Magistrate, namely, Shiv Dayal Gupta, M. A. Siddique, Om Prakash Sharma II, Naresh Chandra Rawat, Narain Das Bilochi, Chandra Prakash Singh, out of whom last four persons are admittedly juniors to the petitioner, were given promotion to the post of Civil Judge-cum-Addl. Chief Judicial Magistrate, and against that, the petitioner made his representation vide Annexure 4, dated August 8, 1989. Vide Annexure 5, dated September 13, 1989, the petitioner was communicated the adverse remarks made in his Annual Confidential Report for the year 1983 as under : "integrity highly doubtful. He is not fair and impartial in dealing with the public and the Bar. His public appearances at Weir were most condemnable. Relations with the Bar not cordial. The Bar at Weir passed unanimous resolutions against his way or working & integrity. He indulged in cheap politics at Weir. He was found quite indisciplined-insubordinate. He even could go to the extent of inciting his subordinate to rise in revolt against his/their officer. Integrity certificate for period from Jan. 83 to July, 1983 was with held. " Against these observations, the petitioner had sent his representation (Annexure 6), dated September 27, 1989 but his representation was rejected and rejection was communicated to him vide letter dated January 27, 1990 (Annexure 7 ). First plunk of attack by the petitioner is that it is a case of delayed communication of Annual Confidential Report (ACR) because, the impugned adverse remarks for the year 1983 has been communicated in the year 1989, and on this ground alone, the impugned remarks are liable to be expunged. In support of the contention, two decisions of the Apex court have been relied upon, viz. Baidhyanath Mahapatra vs. State of Orissa (1), and State of Harayana vs. P. C. Wadhawa (2 ). No explanation whatsoever has been given as to the delayed communication either in reply to the writ petition or during the course of arguments, by the learned counsel for the respondent. In State of Harayana vs. P. C. Wadhawa (supra), there was a delay of 27 months in communicating adverse remarks to the affected officer and it was a case where Rules 5,6, 6-A & 7 of All India Services (Confidential Rolls) Rules, 1970, (according to it, period of seven months for communication was provided) were held to be directory but it has been laid down that it required to be substantially complied with, and delayed compliance was held to be not substantial compliance. In these circumstances, the delay of 27 months was held as inordinate and it was not approved. In Baidhya Nath Mahapatra vs. State of Orissa (supra), the adverse entries for the years 1969-70, 1970-71, 1972-73 and 1975- 76 were communicated in a lot to the affected officer in 1978, and there was service code contemplating a period to communicate the adverse entries, but, according to their Lordships, belated communication of the entries had resulted in denial of reasonable opportunity to the affected person to improve his performance.
(3.) LENDING support from the decisions, referred to above, I may observe that the purpose of communicating adverse entries, to the government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improve his work and further if the entries are not justified the communication affords him an opportunity to make representation, and if the entries adversely made against a government servant are communicated to him after several years, the object of communicating entries is defeated. In the case at hand, the adverse entry no doubt pertains to the period January 1983 to July, 1983 having been made in his ACR by his reporting officer, Shri M. A. A. Khan as District Judge, and it has been communicated on September 13, 1989, after a delay of six years. It is not the case of the respondent that after 1983 also, the adverse entries were made. According to the return filed by the respondent, there is merely a denial to the contention of the petitioner that his past service records were good. Even it has been stated therein that there was a report of Shri M. A. A Khan on a complaint made by the President Bar Association, Weir and that report was brought to the notice of Hon'ble the then Chief Justice on 1-3-1985. But, curiously enough, what has been considered and ordered upon the report of Shri M. A. A. Khan, by the Chief Justice, is not placed on record nor seems to have been communicated to the petitioner. Thus, in my view, the impugned adverse entries were not communicated within a reasonable period rather it is a case of belated communication of the entries resulting in denial of opportunity not only to improve his work and conduct but also to make an effective representation against the same. And, the whole object of making of adverse remarks had lost because they were communicated after an inordinate delay. Moreover, since there is nothing material on record that there were also adverse entries in his ACRS for the years subsequent to 1983, having been communicated to him by the respondent, the petitioner can reasonably be assumed to have proved himself to be improved in his service career. Further, the adverse remarks in the circumstances, cannot be understood in terms of punishment, as held in State of Haryana vs. P. C. Wadhawa (supra ). As to the correctness of the remarks in question which have been assailed, shri R. D. Rastogi has urged that there was no material on the basis of which an opinion could be formed against the petitioner so as to recorded adverse remarks, as had been recorded for the year 1983 (January to July 1983 ). From the reply filed on behalf of the respondent, it is not borne out as to what was material on the basis of which the reporting officer (Shri M. A. A. Khan) formed his opinion against the petitioner recording adverse remarks (as stated in Annexure 5) for the year 1983 (upto July, 1983 ). As stated earlier, the only thing which has been given out in the reply by the respondent is that a complaint was made by the President Bar Association Weir to the High Court which directed the District Judge (Shri M. A. A. Khan) to enquire into the matter and who had also sent his report and this report was brought to the notice of the Chief Justice on 1. 3. 1985. But, as observed above, neither any report of the District Judge nor the order passed thereupon by the Chief Justice either on 1. 3. 1985 or subsequently, has been produced or shown to this Court. As against this, in the rejoinder filed by the petitioner, it has been stated that no copy of the said complaint had been given to him nor he had been heard as against the assertions made in the said complaint,nor any adverse remarks if any had it been against him resulting into any order affecting his right, have been communicated. Highlighting these facts and circumstances, Shri R. D. Rastogi contended that such complaints not supported by any conclusion against the petitioner cannot be made use of unless he has been afforded an opportunity to rebut such assertions made in the complaints. There is no material in the reply to show as to what material has been considered or made basis by the reporting officer for recording the impugned adverse entries against the petitioner. Further, as held in M. C. Taylor vs. High Court of Judicature for Rajasthan (3) which was also a case of adverse entries recorded against the Judicial Officer like the petitioner, in such matters when the plea advanced in support of the remarks is that the remarks were recorded on the basis of the assessment of the Reporting Officer, the Committee considering the representation of the petitioner against his adverse entries in question, ought to have first called upon the comments of the Reporting Officer and, had the Committee taken that trouble to call for the comments of the reporting officer, the reporting officer would have been in a better position to inform the Committee with regard to the material on the basis of which he had formed the opinion so as to give these remarks and he could have said something in support of the remarks to justify the same. In the case of the petitioner, no extract copy of the report of the Committee which considered the representation of the petitioner has either been furnished to the petitioner who according to him even was not informed/known as to who had given consideration to and rejected his representation and as to what reasons have been assigned while rejecting his representation and as to what material has been considered while doing so, nor it has been placed on record and shown to this Court during the course of arguments so as to justify their assertions made in the reply. There is no material in he reply or its affidavit to show that the Committee considering the representation of the petitioner has called for the comments of the reporting officer. Thus, it is clear that the petitioner's representation was considered by the Committee without even calling for the comments of the Reporting Officer. I may add that the Committee had nothing before it except the petitioner's representation and the bare remarks of the Reporting Officer, assailed here. Therefore, while adopting from the decision in M. C. Taylor's case (supra), such a consideration of the representation against adverse remarks without even calling for the comment of the reporting officer does not amount to a real and effective consideration. In this state of affair, better course would have been to send the matter back for consideration of the Committee and to decide the representation de-novo after calling for the comments of the reporting officer but, as pointed out above, in the case at hand, the adverse remarks for the year (Jan. to July, 1983) were conveyed as late as September 13, 1989, i. e. after a period of nearly six years and the representation was rejected and communicated on January 27, 1990, and thereafter, after four months, the petitioner had already been promoted as Civil Judge & Addl. Chief Judicial Magistrate. In these circumstances, it is clear that the High Court itself has treated these adverse remarks to be of advisory nature only. Thus viewed, when the adverse remarks have otherwise also lost their importance in view of the inordinate delayed communication of the entries, and lack of any material shown on which basis the opinion was formed to record adverse entries, and further on account of denial of reasonable opportunity to the petitioner so as to make an effective representation, it will now be an exercise in futility to send the matter back to the Committee to consider the petitioner's representation de-novo after calling for the comments of the Reporting Officer as on the basis of the existing record and the pleadings of the parties, in my view, the impugned remarks had been recorded against the petitioner in the absence of any material to form the requisite opinion against him. The remarks cannot be sustained. ;