KAN SINGH, J. - (1.) THESE two writ petitions being of identical nature were called on for hearing together and they can conveniently be disposed of by a common judgment. The relevant facts may be stated with reference to Nareshwarlal Joshi's writ petition.
(2.) NARESHWARLAL Joshi started his career as a Government servant as Assistant Teacher in the Government High School, Bhilwara which was at that time in the former Udaipur State. He was appointed as such on 3-8-1941. Thereafter he had a number of appointments and on 14-11-1958, shortly before the formation of the United State of Rajasthan, he was Instructor in the S. T. G. Training School at Shahpura in the grade of Rs. 150-15-300. On 4-7-60 by order Ex. I, he was appointed to officiate as Headmaster in the grade of Rs, 250-500 and posted at S. T. G. Training School, Ladnun. On 23. 6. 61 he came to be transferred as Headmaster at the Government School, Bhensrodgarh. This appointment became effective from 1-7-1961. He continued on that post till 3-7 63 and was drawing a salary of Rs. 280/ at the time and Rs. 40/- as D. A. per month. He then came to be reverted as Assistant Teacher and was posted at Government Higher Secondary School at Bhilwara in the grade of Rs. 100-15 225. He was allowed a salary of Rs. 225/- plus dearness allowance. This order is Ex. 3 on record. Against this order of reversion the petitioner made a number of representations and vide Ex. 4, which is dated 15-7-65, the petitioner was informed by the Deputy Director of Education that in the Annual Confidential Report for the year 1950-60 while he was reported to be a Headmaster certain adverse entries in the Rolls came to be recorded against him. The petitioner demurred and lodged a representation against what was conveyed to him vide Ex. 4 and eventually the Additional Director of Education wrote to him to say vide Ex. 5, that the petitioner's reversion had been made on account of adverse entries in the Confidential Reports in 1959-60 which had already been communicated to him. It is in these circumstances that the petitioner is assailing the order of his reversion Ex. 3 from the post of Officiating Headmaster to that of an Assistant Teacher. In assailing this order the petitioner states that while many persons junior to the petitioner were either allowed to continue as Officiating Headmasters or they came to be promoted subsequent to the petitioner's reversion, the legitimate claim of the petitioner had at all material times been overlooked. It is pointed that the action taken against the petitioner was penal in character, as the petitioner had been visited with evil consequences in the shape of reduction of salary, losing future prospects of promotion and other losses of like nature. In the circumstances it is contended that the order Ex. 3 is violative of both Art. 311 as well as Art. 16 of the Constitution. It was further urged in this behalf that even the Government instructions regarding the communication of the so-called adverse entries to the petitioner were not followed. Petitioner proceeds to say that even though these entries, according to the respondents, came to be made as back as in the year 1959-60, they were communicated to the petitioner for the first time only in the year 1965 and all along he had been continuing as Officiating Headmaster in the higher grade Apart from this, it is pointed out that the entries were factually wrong in that the petitioner was not at all a Headmaster in 1959 60, as mentioned in the so-called adverse entries; the petitioner having been first appointed as Officiating Headmaster only from July, 1960. It is submitted that if the petitioner were afforded an opportunity of having his say against the so-called adverse entries he would have explained that the entries had no relation to the factual position and were even otherwise unwarranted. The writ petition has been opposed by the State. It is denied that the order of the petitioner's reversion from the post of Officiating Headmaster to that of Assistant Teacher was violative of either Art. 311 or Art. 16 of the Constitution. According to the respondents, the petitioner and some others were only promoted as Officiating Headmasters on 16-7-60 on trial till a final selection was made by a Departmental Promotion Committee. The respondents maintain that there was hardly any question of ignoring or taking note of the adverse entries at that stage against the petitioner. Subsequently, according to the respondents, a Departmental Promotion Committee held the selections and those who were selected by the Departmental Promotion Committee and whose promotions were concurred in by the Public Service Commission were appointed as Headmasters, but others including the petitioner who were not selected by the Departmental Promotion Committee were left out and reverted to their substantive rank. It was also stated that the case of the petitioner would be considered again and he would be promoted if his work is satisfactory. Lastly, it was urged that if the petitioner's case was that he was subjected to a penalty without justification then he should have gone in appeal to the State Government. To put it differently the contention of the respondents is that the petitioner having not availed of his alternative remedy this Court should not grant him any relief in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. The other petition by Kabulsingh rests on contentions similar to those raised by Nareshwarlal Joshi. Like Nareshwarlal Joshi, Kabul Singh who was also an Assistant Teacher came to be promoted as Officiating Headmaster with effect from July, 1960, and in his case too there were certain adverse entries which came to be communicated to him only in the year 1965 when he had worked almost for 4 years as Officiating Headmaster and like Nareshwarlal Joshi he too came to be reverted. The principal question that arises for consideration is whether the impugned order Ex. 3 is violative of Art. 16 or Art. 311 of the Constitution for that matter. It is not in dispute that the petitioner came to be reverted as a result of adverse entries recorded against him. The stand of the respondents, in reply, is that | the Departmental Promotion Committee had met and considered the case of the petitioner and as it did not find him suitable he was reverted. I have considered this submission, but in my view this does not quite square with what was conveyed by the Additional Director to the petitioner on 13-8-65 vide Ex. 5. The aforesaid letter proceeds to say that the petitioner's reversion had been made on account of adverse entries in the Confidential Reports in 1959 and 1960. The order of reversion is dated 5-7-63 and the adverse entries came to be communicated to the petitioner only on 15-7-65. Even if I were to assume, in the circumstances, that the Departmental Promotion Committee had found the petitioner unsuitable, the fact remains that the petitioner had not been afforded an opportunity of having his say against the adverse entries recorded against the petitioner. There are certain administartive instructions of the Government published in the year 1959 which provide for preparation of Annual Confidential Reports about Government servants, Confidential reports are prepared with a view to making as correctly as possible an objective assessment of a Government servant so that authorities may be in a position to make a proper appraisal of a Government servant's capabilities and fitness for promotion to higher posts. The entries are also made to afford an opportunity to a Government servant to become conscious of his failings or defects so that he may try to improve himself, if he wants to do. It is for this reason that provision is made in the Government Instructions for communication of adverse remarks to a Government servant. It is laid down in the Instructions that it shall be the duty of the Reporting Officer not only to make an objective assessment of his subordinates' work and qualities, but also to see that he gives to his subordinates, at all times, the necessary advice, guidance and assistance to correct their faults and deficiencies. It is enjoined on the Reporting Officer that adverse or unfavourable remark be communicated to the Government servant concerned and the Reporting Officer is further required to specifically state while reporting the matter to the higher authorities whether the defects reported have already been brought to the notice of the civil servant concerned. Then the Instructions also provide for filing of representations against the adverse remarks communicated to the Government servant and as to how such representations are to be disposed of. It is unnecessary to review the various instructions in any detail. Suffice it to say that the underlying object of these Instructions is to afford an opportunity to the Government servant to be conscious of his so-called defects and try to improve himself and also, if he has anything to say against such remarks then he might make representation. It is true the remarks have not been meant to be in the nature of punishment so that the Government servant might be too much touchy about them and they be swayed into lodging appeals as if they were penalties, but all the same the Instructions do contemplate the making of representations by Government servants concerned against adverse entries recorded in their Rolls. These Instructions being administrative in character their breach as such is not justiciable, but all the same at times the noncommunication of adverse entries against Government servants will have a bearing on the applicability of Art. 16 of the Constitution. A perusal of the Rules of promotion for the employees of the Education Department known as Rajasthan Educational Service Rules, 1960, shows that in the matter of making promotions the Departmental Promotion Committee has to have before it the Character Rolls and Personal Files of the Government servants concerned. Therefore, if adverse entries which will be germane to the consideration of promotion of the Government servants concerned exist in his record of service, then it is but fair that at some stage the Government servant concerned be afforded an opportunity of having his say against such adverse entries. Without this the formality of communicating the adverse entries to the Government servant will be meaningless. Such un-explained entries being placed before the Departmental Promotion Committee might have some damaging effect in the assessment of Government servant's merits for promotion. If those adverse entries are really taken into consideration then the Departmental Promotion Committee should also have the benefit of the Government servant's representation if he had chosen to file one so that there may be a balanced approach in consideration of the entries, if any, which are to be taken note of. Proper consideration contemplated in rule 25 of the Rajasthan Educational Service Rules, 1960 envisages a balanced approach in such a matter. It is true, question of promotion depends on a variety of factors and considerations and while one factor may pull in one direction another factor may pull in the opposite direction and at times the over all effect of all the factors bearing on the merits of a Government servant for promotion has to be taken It may not, therefore, be possible to hold in every case that merely because the adverse entries were there and there was no opportunity of making a representation by the Government servant the promotion will necessarily be vitiated because there may be various other factors besides the so-called adverse entries In a particular case, the nature of the entry itself may be quite vocal and there may not be much to be said against such entry. For example, it may be that it is based on some findings of a court or a departmental body. Therefore, while I do not wish to lay down as a general proposition that lack of communication of adverse entries will necessarily result in the case of a Government servant being not fairly considered by the Departmental Promotion Committee, one can certainly conceive of cases where lack of communication of such adverse entries may result in the case of a particular civil servant being not considered fairly and justly. With these general observations I now propose to go into the facts of the present matter. Ex. 4 shows that there is an adverse remark about the punctuality of the petitioner. It is mentioned that he was not punctual according to the received reports. Now, if the Government servant were to have an opportunity, he could very well have cleared his position as the remarks are vague in the extreme. Then there is another remark about popularity among the students and it is mentioned that he was un-popular. Then as regards tact it is mentioned that he assaulted a pupil teacher. As to who the pupil teacher was and the other particulars of assault do not find any mention. Then at the outset it is mentioned that the petitioner was reported to be Headmaster in the year 1959-60. Petitioner says that he was never a Headmaster at the relevant time. Looking to the nature of the adverse entries I am satisfied that it was possible for the petitioner to convince the authorities otherwise. This is, however, not to say that the petitioner would necessarily have succeeded in doing so. I am only pointing this out with a view to illustrating that looking to the nature of entries one could very well think that there would be other side of the picture as well. In such a case, therefore, the noncommunication of the entries at the relevant time would be capable of adversely affecting the fate of the petitioner whether it actually did so is the more important question. For that although the stand of the State Government in their reply is that the Departmental Promotion Committee did not find the petitioner suitable and he was accordingly not selected, but this, as I have already pointed out, does not fit in with what was stated in Ex. 5 by no less a person than the Additional Director. He has clearly stated in Ex. 5 that the petitioner's reversion had been made on account of adverse! entries in the Confidential Report of 1959 60 which had already been communicated to him. Therefore, in the present case I feel satisfied that the adverse entries recorded against the petitioner had materially affected his fate. Could it be said, in the circumstances, that without consideration of the representation, if any, of the petitioner the Departmental Promotion Committee would have fairly and squarely judged the effect of these entries. The question, upto my mind, admits of only one answer and that is in the negative. Looking to the facts of the present matter, therefore, it was essential that the petitioner should have been apprised of the adverse entries before his reversion was ordered. Now, in me circumstances the question arises whether the order of reversion is violative of Article 16 of the Constitution. There is no manner of doubt that the petitioner was senior to respondents Nos. 3 to 12 and while these respondents were continuing as Headmasters, the petitioner had been reverted. To such a situation, to my mind the dicta laid down by this Court in Anand Swarup Bhat-nagar vs. State of Rajasthan (1) will be attracted. In Bhatnagar's case while Bhatnagar was reverted to the post of a Ranger his juniors in the substantive cadre of Ranger were allowed to continue as Sub-Divisional Officers. Apart from these adverse entries nothing had been brought out about the evaluation of the petitioner's merits for promotion. Now a word about the Government's stand in the reply that the petitioner was not approved by the Departmental Promotion Committee. It was mentioned in the reply that the petitioner was given an officiating chance only for trial purposes till he was finally selected by the Departmental Promotion Committee and while the Departmental Promotion Committee which met subsequently found other persons suitable, the petitioner was not approved for promotion. The averments in reply are not clear enough. According to R. 25 of the Rajasthan Educational Service Rules, 1960, the Director has to prepare a list not exceeding 5 times the number of vacancies from amongst the senior-most teachers who are eligible for promotion and he is to forward it together with the Character Rolls and Personal Files to the Secretary to the Government in the Education Department. The cases of civil servants as per list are to be considered by the Departmental Promotion Committee and it may also interview such of them as it may consider necessary and then the Departmental Promotion Committee is to select a number of candidates twice the number of vacancies. Such a list is to be forwarded by the Director to the Public Service Commission together with a list of persons who have been superseded arid then the Public Service Commission has to give its advice about the suitability of persons to be promoted. The Government's reply is not quite clear as to whether the petitioner who was undoubtedly a senior person was included by the Director in the list of superseded persons sent by him to the Public Service Commission. If this had not been done, then it cannot be said that the petitioner's case had been considered properly. This was a fact within the special knowledge of the respondents and the petitioner could not be in a position to know as to how his case was dealt with. In the circumstances presented I am satisfied that the case of the petitioner had not been properly considered and there has been violation of Art. 16 of the Constitution. This is not a case in which Art. 311 of the Constitution is attracted, as the petitioner was not a substantive Headmaster and had no right to hold that post, nor could it be said that the action that was taken against him was intended to be penal in character. However, the petitioner succeeds on the point that there has been violation of Article 16 of the Constitution and, therefore, I need not say much about Art. 311 of the Constitution. Whatever I have said about the case of Nareshwar Lal Joshi mutatis mutandis applies to Kabul Singh's case. In the result I allow both the writ petitions and hereby quash the orders of the petitioner's reversion Ex. 3 in both the respective cases. The respondents will be free to consider the cases of these petitioners for promotion according to law but till then the petitioners shall be restored to their position prior to their reversion. In the circumstances the parties are left to bear their own costs. ;