SHARMA, J. - (1.) THE petitioner seeks to set aside his adverse Annual Performance Appraisal Report (for short `apar') for the year 1997-98 and prays to issue direction to the respondents to consider his case for promotion to the post of Rajasthan Police Service (Super-time Scale) and to the cadre of Indian Police Service.
(2.) AS per the facts stated in the writ petition the petitioner joined Rajasthan Police Service (for short `rps') on the recommendation of Rajasthan Public Service Commission (for short `rpsc') on December 1, 1982. Thereafter the petitioner was promoted to the post of Additional Superintendent of Police in the year 1991 and selection scale was granted to him in the year 1996-97. When the petitioner was not considered for promotion to the cadre of Indian Police Service because of Adverse APAR of the year 1997-98. The petitioner made prayer by serving notice for demand of justice on the respondents for not considering the adverse APAR since the same were not communicated to the petitioner but the respondents did not consider the prayer. The petitioner therefore approached this court invoking powers under Article 226 of the Constitution. The respondents in the return to the writ petition pleaded that although adverse ACR was communicated to the petitioner through Director General of Police, vide letter dated September 5, 1998, the receipt of the same was not available. The Departmental Promotion Committee considered the APAR of the officers falling in the zone of consideration for promotion to Indian Police Service. Since the APAR of the petitioner was adverse, his case was not considered. I have given my anxious consideration to the rival submissions. A bare look at the material on record reveals that following adverse entries were entered into APAR for the year 1997-98 of the petitioner:- " (i) There was a case of embezzlement of government funds by a clerk in zone Ajmer when he was the Zone Officer. (ii) During the period under review the officer remained posted as Additional S. P. , CID (CB) Ajmer from 1. 4. 97 to 30. 8. 97 and Additional S. P. (II) SB, Bharatpur from 4. 9. 97 to 31. 3. 98. In part I of the APAR he has completely avoided mention of Ajmer posting, perhaps because of embezzlement case in the special Audit by FA, PHQ's party which was conducted under SB (Hq)'s request. Supervisory negligence of the Reportee stands proved. Criminal case against LDC is under investigation. " It appears from the record that the said adverse entries were recorded on September 5, 1998. According to the petitioner the same were communicated to him on May 27, 2003 and on June 11, 2003 he submitted detailed representation against these remarks establishing the fact that there was no supervisory negligence on the part of the petitioner and adverse entries so made were not bonafide.
(3.) IT further appears from the record that the APARs of the petitioner, except for the year 1997-98, have been "outstanding" or "very good" in the total career of 29 years (7 years in BSF as Assistant Commandant and 22 years in Rajasthan Police ). The petitioner received a number of commendations and appreciation certificates from the department. Their Lordships of Supreme Court had occasion to consider the object of making communication of adverse remarks in various cases. In State of Haryana vs. P. C. Wadhwa, IPS, Inspector General of Police and Another (1), Hon'ble Supreme Court in para 14 observed as under:- " The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve this service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty-seven months. It is true that the provisions of Rules 5, 6, 6-A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6-A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty-seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent. " In Baidyanath Mahapatra vs. State of Orissa and Another (2), the Hon'ble Supreme Court in para 5 observed as under:- " When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history. It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion. It is also settled view that it is not permissible to prematurely retire a Government servant on the basis of adverse entries, representations against which are not considered and disposed of. " ;