RAFIQ, J. - (1.) THE petitioner in this writ petition has challenged the adverse remarks entered in his Annual Confidential Report for the year 1999-2000 and has prayed for quashment of order dated 23. 10. 2000 (Annex. 1) containing adverse remarks and order dated 5. 9. 2002 (Annex. 3) whereby the representation submitted by the petitioner against such adverse remarks was rejected.
(2.) BRIEFLY stated facts of the case are that the petitioner was initially appointed as Constable in the Rajasthan Armed Constabulary on 5. 10. 1969. The petitioner thereafter appeared in the written and practical test held for the purpose of selection on the post of Platoon Commander under the Rajasthan Home Guards Service and on being declared successful by the Special Board constituted for the purpose, he was appointed on the post of Platoon Commander on 9. 10. 1980 and since then he was working satisfactorily. There was no adversity in his service record till date. He was then promoted on the post of Company Commander on 16. 11. 1996. It has also been stated that the petitioner had undergone various training courses conducted by the department and other institutions and had successfully completed such courses with goods grades. Apart from this, the petitioner was also awarded various cash rewards and appreciation certificates by the department in recognition of the outstanding work done by him. It has been stated that the APARs of the petitioner pertaining to the year 1999-2000 was down graded by his superior officer and adverse remarks therein were communicated to him by office order dated 23. 10. 2000 (Annex. 1. The petitioner stated that a bare perusal of the communication would reveal that the assessment given by the Reporting Officer was `very good' and `good' in all the fields and he further stated that the petitioner `showed interest in his work', was `reliable,' `showed compassion towards persons beloning to Scheduled Caste and Schedule Tribes' and that the petitioner was never reprimanded during the entire year nor was his integrity ever found doubtful. The over all assessment done by the Reporting Officer was `good' and the Reviewing Officer agreed with the assessment of the Reporting Officer. But strangely, the Accepting Officer communicated certain grave adverse remarks to the petitioner in which it has been stated that he "has grown very fat and cannot work as a good trainer. The Reporting and Reviewing Officer have not taken this into consideration. He has to cut down his fat and must work harder than he has. He must learn the art of discipline and should respect his senior. He is an unsatisfactory officer. " The petitioner submitted his representations against these remarks, but the respondent No. 2 without objectively considering He has to cut down his fat and must work harder than he has. He must learn the art of the discipline and should respect his senior. He is an unsatisfactory officer. " The petitioner submitted his representations against these remarks, but the respondent No. 2 without objectively considering the representation and without assigning any reason passed order dated 5. 9. 2002 whereby he rejected the representation and affirmed the adverse entries communicated to the petitioner. Shri Sandeep Shah, learned counsel for the petitioner has argued that there is no adversity whatsoever during the entire service period of the petitioner. It has also been argued that the Accepting Officer had no occasion to watch performance of the petitioner from close distance and, hence, there was no reason for him not to accept the remarks made by the Reporting Officer as well as Reviewing officer. It has also been submitted that no opportunity of hearing was given to the petitioner before making such adverse remarks. It was not possible for the Accepting Officer to get to know a large number of employees three grades below him for their overall assessment of the character, performance and ability of the reported officer which is vitally necessary as a built of character. He has also argued that it is settled law that when the opinions regarding adverse entries are confirmed, recording of detailed reasons may not necessary, but they are necessary when a dis-agreement is recorded. He has also argued that adverse entries pertain to the period from 1. 4. 1999 to 2. 8. 1999 and just prior to this period, the petitioner had been medically examined and was found fit and was further sponsored by the department as its representative to appear in the `basic Fire Fighting Course' held in Nagpur between 15. 2. 1999 to 26. 3. 1999. The petitioner appeared in this course and was placed in first class. Further more, the petitioner had also appeared in `promotional Cadre Course' held by the department form 13. 7. 1998 to 18. 8. 1998 and was placed in `bx' grade. It has therefore been argued that the Accepting Authority was wrong in coming to the conclusion that the petitioner is very fat and cannot work as a good trainer. In support of his arguments, Shri Sandeep Shah, learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court delivered in the case of U. P. Jal Nigam & Ors. vs. Prabhat Chandra Jain & Ors. reported in JI 1996 (1) SC 641 wherein the Hon'ble Supreme Court held as under:- " If the graded entry is of going a stop down, like falling from `very good' to `good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would not frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instance case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. " The writ petition has been contested by the respondents, who in the reply have come out with the plea that the respondents have rightly rejected the representation submitted by the petitioner. Shri Rameshwar Dave, learned Dy. Government Advocate argued that petitioner was given warnings vide order dated 7. 9. 1990 and 11. 3. 1991 for remaining negligent towards duty. He has further argued that the Accepting Officer has rightly observed that the petitioner has grown very fat and cannot work as a good trainer due to his fatness and the adverse remarks were also recorded to the effect that he must learn the art of discipline and should respect his seniors and he is an unsatisfactory officer. Since the petitioner was a trainer in Home Guards Department, therefore, his excessive fatness was creating hurdle in performance of his duties effectively. He has also argued that even though the petitioner did not submit his representation in time, however, the respondents after objectively considering the material available on record affirmed the adverse entries communicated to the petitioner. It has therefore been prayed that the writ petition be dismissed. I have heard learned counsel for the parties and perused the record. So far as contention of the respondent that the petitioner has been given warring on two occasions respectively on 7. 9. 1990 and 11. 3. 1991 is concerned, they are old one and the same would not be relevant for the purpose of deciding the present controversy.
(3.) THE assessment given by the Reporting Officer in respect of the petitioner was `very good' and `good' in all the fields and that the petitioner `showed interest in his work', was `reliable', `showed compassion towards persons belonging to Schedule Caste and Schedule Tribes'. THE petitioner was never reprimanded during the entire service career nor was his integrity ever found doubtful. But a perusal of the communication dated 23. 10. 2000 (Annex. 1) would show that the Accepting Officer has opined that the petitioner has grown very fat and cannot work as a good trainer and he should cut down his fat and must work harder than he has. He has also opined that he must learn the art of discipline and should respect his senior, but nothing has been brought on record as to how he is unfit, indisciplined and disregarded his seniors. THE respondents have also not brought on record any instance or instances as to how the performance of the petitioner was rated unsatisfactory by the Accepting Officer. 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. 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. " On the same line, the Hon'ble Apex Court in Union of India vs. E. G. Namburdiri 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. 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. " ;