K. C. AGRAWAL, C. J. - (1.) THIS writ petition under Article 226 of the Constitution has been filed by A. K. Gupta challenging the order of dismissal of his appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as the Tribunal ).
(2.) THE petitioner and respondent no. 4 were appointed as substantive Sub-Engineer (Mech.) in the Public Works Department, Jaipur. Respondent no. 4 was senior to the petitioner. THE petitioner and respondent no. 4 were considered by the Departmental Promotion Committee for regular promotions to the post of the Assistant Engineer (Mech.) but on account of adverse remarks in the Annual Confidential Report 1973-74 of respondent no. 4 he was not given promotion against the vacancies of the 1976. As a result of the adverse remarks the petitioner superseded respondent no. 4 and obtained promotion on 25. 12. 1976. On not being promoted, respondent no. 4 preferred a representation to the Chief Engineer, which was allowed and the adverse remarks which disentitled him for promotion was expunged by an order of the Chief Engineer. As a result of expunction of the adverse remarks of respondent no. 4, he was given promotion as against the vacancies of the year 1976 and the petitioner was brought down to the vacancies for the year 1979. The petitioner preferred an appeal before the Tribunal and raised number of grounds. The appeal was rejected by the Tribunal vide order dated 5-8. 1991. Aggrieved, the petitioner has filed the present writ petition. Shri R. N. Munshi argued before us with great ability urging that the appeal of the petitioner had been wrongly rejected and further the respondent no. 4 was given promotion. The Chief Engineer had no jurisdiction to expunge the adverse remarks given to respondent no. 4. The adverse remarks given to respondent No. 4 was that he was most unsincere, irregular and negligent. The adverse remarks could not be expunged without there being sufficient material on record to controvert the same. He also contended that the order, expunging the adverse remaks of respondent no. 4, being behind the back of the petitioner and without giving any opportunity to him, was nullity. He further contended that the principle of natural justice which had taken its roots in the matter of service jurisprudence could not be expunged without hearing the petitioner. We are of the opinion that the argument of the learned counsel for the petitioner is unsustainable.
(3.) IT is true that blurring of the dividing line between quasi judicial and administrative order pointed out in A. K. Praipal v, Union of India (1) and Meneka Gandhi v. Union of India (2) has no effect. But if the authority bonafide, is of the opinion that the adverse remark was not sustainable from the record and was unwarranted, the correctness of that opinion cannot be challenged before this court. IT is open to an aggrieved party to contend that the requisite opinion had not been formed or that the decision was arbitrary but the High Court would not examine the matter as an appellate court. IT may, if that is possible, the order is passed (i) malafide or (ii) that it is based on no evidence or (iii) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material, in short, if it is found to be a perverse order. Learned counsel for the petitioner argued that the order expunging the adverse remarks made against the respondent no. 4 was perverse inasmuch as there was no basis or ground on record to come to that finding. He urged that as a result of the order of the Chief Engineer respondent no. 4 was promoted to a higher post notwithstanding the adverse remarks, such remarks lose sting because of its unjustified expungtion. He further urged that on account of expungtion of adverse remarks made against respondent no. 4 the petitioner has not only become junior to the said respondent but also his chances for promotion are affected. He place reliance on a decision in Lakhi Ram v. State of Haryana (3) which is to the following effect: It is not correct to say that an officer is not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer, because the effect of expungement of adverse remarks in the confidential report of the latter is to prejudice the chances of promotion of the former and if the former is able to show that the expungement of the remarks was; illegal and invalid, the adverse remarks would continue to remain in the confidential report of the Officer concerned and that would improve the chances of promotion of the Complaining Officer vis-a-vis the other respondent no. 6" Counsel for the petitioner urged that he has a right to challenge the expunction of adverse remarks made against respondent no. 4. ;