Amar Kant Choudhary v. State of Bihar & Ors.

Judgment

The Judgment of the Court was delivered by, . VENKATARAMIAH, 1: This is an appeal by special leave against the order dated: October 5, 1982 in·c.W.J.C. No'. 1420 of 1982 on the file of the High Court of Patna dismissing the petition filed by the appellant under Article 226 of the Constitution.- The facts of the case ·are these ; The appellant was directly recruited and appointed as a Deputy Superintendent of Police in the ·Police Department of the State of Bihar in the year 1964. Jn 1973 he was eligible to be considered for appointment as a member of the · Indian Police Service under the provisions of the Indian.Police Service l a.. A.K. CHOUDEARY v. BIHAR (Venkataramfah, J.) . (Recruitment) Rules, 1954 (hereinafter referred to as 'the Rules') read with the Indian Police. Service (Appointment by Promotion) Regulations, !955 (hereinafter referred to as 'the Regulations_') framed under sub-rule (1) of Rule 9 of the Rules.

His case was placed before . the Committee constituted under Regulation 4 of the Regulations for the purpose of preparation of the list of suitable officers for promotion to the Indian Police Service Cadre of the State of Bihar in 1973, 1974, 1975 and 1976. In the years 1973, 1974 and.1975, he could not be included in the select list as he was junior 50 thos_e who were included inthe·select list. In the_ year 1976 his name was not. included in :the select list as ·there was an adverse· entry "in his confidential roll of 1973-74. The reasons given b,v the _Committee for superseding the appellant based on. the confidential roll were· these : · "Delayed ·disposal of pending papers and supcrv;sicn notes. 'Inadequate control over office, judgment," initiative, sense of responsioility and ~anagement reported to be just fair. Censured by State Govt. order Cit. 20th Oct., 1975."

The Selection Co_mmiitee took_· the decision to supersede the appellant at its meeting held on Decembe.r 22, 1976 ·in. view of !l~e above entry in t~e confidential roll of the appellant. It. is not disputed th~t the_ said adverse entry was communica.ted to the appellant in the year 1977 after the above meeting was· over. It appears thaf there were also adverse entries in the annual confide~tial roll of the appellant for the year 1974-7-5. They were communicated to tlfe appellant ·in the year 1976. The appellant made representations in respect of.both the adverse entries in time, His main 'grievance was that tl~y . had been made by his official superior who was· biased against him.

The adverse entry m·ade in the confidential roll for the year 1973-74 was expunged by the State Govern~ent on December 3, 1980 and the adverse entries in the confidential roll for the, year 1974-75 were expunged by two orders dated February21, 1978 and October 7, J980. · There was.no meeting of the Selection Committee from 1977 to 1980. It, however, met on March ll/12, !.981. ·on thi; ·occasion the appellant represented to the Committee \jlat the adverse entries in his confidential rolls had been removed by the State · Governmrnt by various orders and requested them to consider his case for promotion ·to the Indian Police Service. Cadre. . On this occasion ti1e Committee did not look into the confidential rolls of the appellant for the years 1979-80 _and 1980:81 which eontain~d entries' very favourable to· the appellant for no fault of the appellant .. The' Co.mmittee,' however, n .302 SUPREME CO.URT REPORTS [1984]

2 s.c,R. classified bi!n as.'good' .but did not inciude. him in the sekct list while some of his juniors, were included. The appellant 'represented to the 'committee and the State· Government ag,'.inst tl;e decision taken by· the Committee. -the Committee again 'met on October 14, 1981. When nothing came outof therepresentations made ·by him,' tl'.c appellant filed.a writ petition· questioning th validity. of the dccisioi:s of the Selection Committee before the,. High Court of Patna. The petition was·dismissed at.the stage of admissicn. ·This appeal is filed by special leave against the. ordef of the High Court;

The main point urged before us is that the Selection Committee 411 had committed, ah illegali.ty in rejcctin·g th.c daim .of the app~l!ant fer being included in the select list in th~ Y.ear ·1976 by relying upcn tl~e adverse entries whiCh had been made. in his confidential rolls which had' not been either' .commu;1icated to him or against which. he had .made representation which had remained undisposcd of and which _.had been subsequently expunged. The true legal position· governing such cases is laid down by this Court in Gurdial Singh Fijji Y. State~[ Punjab & Ors.'''. which was a case arising under. the Indian Adminis.trative Service (Appointment · by Promoti:in) Regulations, 195~ which more or Ics.s correspond to · the Regulations applicable to the Indian Po life Service. Jn tbe 'aboyc case Chandrachud,.C.J. has observed thus :

"The principle is weJl'.settled that· in accordanc~. with the rules of natural jlistice, all adverse·. rcpcrt ln a cOnfidtntial roll cannot be. acted upon to deny promotional opportu.nities unless itfs communicated to the .person con.cerned so. that. • he has .an opportunity 'to improve his work arid conduct or . fo explain: the circumst.ances leadjng to the )'eport. Such an oppoitunity is not _an empty fotmality, its object, .par- . · tial!y, being to enable the superior authorities .to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Un- , . fortunatel'y, for one reason or another.,. not arising out of any fauli on the: part of ·the. appellant, tliongh the adverse report was communicat~d to hiin, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances It i's didilcult · to suppoti the non-issuance of. the integrity certificate to (I) [1979]

3 S.C.R. SIS. A.K. CHO.UDIIARY v. BIHAR ·cvenkataramieh, f)' the appeJlimt. The chain or reaction .began with the adverse report and. the infirmity in the link -of causation is that no · one .has vet deciccd whether that rcpcrt was justified. We cann.ot speculate, in the absence cif a pr~per p!ea<,ling, whether the appellant was not four.ct· suital;'e _otherwise, that. is to say, for reasons other than. those connected with the n<Ynis~uarice of an .integrity .certifiC'ate to hin1." It is ~ot disi:.uted that the c'.&csilirnticn d" cfiicers· whose ca><s are taken up for·considerati()n into 'outstanding', 'very .l'ccd', 'geed' or 'bad' etc. for .pmposes o( promotion to tl\e Indian 'folice ~ervice ·Cadre is mainly based upon the remarks in the confi<;lential rolls. On December 22;

J 976, when the Selection Committq' met, the adverse remarks,in the ~onfidential roll for 1973-74 had. not peen · communkated.·and the appellant's ·representatio11 · 1egarding a_dvetse remarks in the confidential roil for the year J<;74-7) and censure against him had not. been disposed .cif clthough it is alkged that one Shri Yamuna Ram agai1lst whon1 ~dso r.dvcrse ren1rrks ·had been . . made was included provisicnally in,the '°!eel list · When the Selection Committee met on March 11 and 12, 1981 despit~ State. Governm!'nl's ·suo nrofli decision not to retain actverse rem.arks for ·01e year ·1976-'77 on records, the same had not been removed· froll) the confidential roll, This must have infim.nced ihe decision of the Selection Com- 1™ttee. lt is also seen that the confidential rolls of the appella;it for the year l 979-80. and' 1980-81 which contained eniries favour.able to the 'lppellant were n;t placed before the Selection Committee.

On October 14, 1981 when the Selection Committee met, it does not ·appear to haw considered _the representation made by_ the appellant against his non-selection.. hi addit.ion to all these, the State Government has expunged t\1e adverse remarks by its orde!S made from time. to time. These facts are not controverted by .the respondents. The fac'ts of this case are distinguishable fron1 the facts irivolved 0 in the decision of this Court in R.L. Butail v. Union of India & -Ors,'" which is relied on by the respondents. In that· case the confidential report _of the appel\ant !h~rein for the year "1964 contain~d an adverse entry and he had made a representation regarding it. When ·the Departmental Promotion Committee met in March, '1966, the appellant's . represe~tation regarding the adverse entry of ]964 was not placed before it and a decisio'n adverse to the ~ppellant w·as taken by the Commiitee witl1ont reference to the said 1;epresentation.. The (1) [!971] 2 S.C.R. SS . appellant contended before this Court tl\at th~ omission to consider his 'representation before th~ date of meeting of the Commiitee vitiated its decision.

The Court held that the .omission either to place the said representation before the Committee or its '.•non-corisiderati~n before the date ·of the meeting had no effect on the decision of the Committee as the represe~tation had actuaily been rejected subsequently with the result that the confidential report for the ·year 1964 remained unchanged. The position in the case before us is different. _Herc the adverse entries in question have in fact been expunged by · · the State Government subseq·uently. It may be pertinent to state here that the" practice of the Departmental Promotion ·Committee· referred to in Butail's case (supra) was that if in such a case a representa.tion were to be accepted .and. in consequenc' the. confidential report .was altered or the adverse.entries were expun.ged the Committee would have to review its recommendations in the light of such a result. '

The appellant in the present case has pressed before us for a ·similar relief as the adverse entries made against him have been since expunged. After giving our anxious consideration t.o the uncontroverled material placed before us we have reached the ·conclusion that the case of the appellant for promotion to the Indian . Police Service Cadre has not been considei·ed by 'the Committee in a just and fair .way 'and his case ,has been ·disposed of contrary to the principles laid down in Gurdial _Singh Fijji's case (supra). The decisions of the Seleo- . tion Committee Tecorded .at its· meetin-gs in which the case of the appellant was consideretl are vitiated by reason of reliance being placed on· the adverse remarks which were later. on expunged. The 1 High Court :committed . an error in dismissing the petition· of the appellant and· its order is, therdorc, liable to be set aside. We accorditigly set aside the order of the High Court. .

We hold that the · appellaJ¥ has made oµt a case for reconsideration of the question 0f his promotion tci .the Indian Police Service Cadre of the State of 'Bihar · as oil" December 22, 1976 and if he is not ~elected as on that date for being considered again as on March 12, 1981. If he is not sejected as on March.12, 1981 his.case has to be considered as on October 14, 1981. The Selection Committ~e has now to reconsider the case of the appellant accordingly after taking into consideration the orders pas~ed by the State "Government subsequently on any adverse entry that may have heen m~de earlier and any other order of similar nature pertaining to the service of the ·appellant If on such · reconsideration the: appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a .dir~ction to the respondents to reconsider the case of the .. A.K. CHOUDHARY v, BIHAR (Venkataramiah, J.) . appellant ·as stated above.

We hope that the above direction will be complied with expeditiously but not later than four months from today. Before concluding we wish to state that the ·Central Government ·and the State Governments should now .examine whether .the present system· of maintenance of confidential rolls should ·be ·continued. Under the present system, entries are first made in the confidential roll of an officer b.ehind. his back and then he is given an opportunity to make a representation against any entry that may have been made against him by communicating the adverse. entry after considerable delay. Any representation made by him would be considered b~ a higher authority or the State Government or the Central Government, as the qse may be, some years later, as it has happened in th_is' case, by which time any evidence that may be ihere to show that the entries made were baseless. may have vanished.

The preqicament in which .. the officer against whom .adve~se remarks are made. is then placed can easily be visualised .. ·Even the authority which has got to pass orqers ·on the representation.of the officer will find .it difficult to deal with the matter satisfactorily after a long interval of time .. Jn the meanwhile the· officer concerned would have missed ·many opportuties which would have advanced 'his prospects in the serviCe.. Jn order ·to avoid such a centingency, the Government inay consider the introduction of a systein in which the officer who has to make entries in the confidential roll may be required to record his. remarks in the presence ·of the officer against whom remarks are proposed to be made after giving him an opportunity to' explain any circumstance ·that may appear to be agafost him with the righ!'to make represe,ptation to higher authori.ties against any adverse remarks.

This cou.rse may obviate many time~ totally baseless remarks being made ·in tJie confidential roll an"d would minimise the unnecessary snffering to which the officer concerned will be exposed. Another system which. may be introduced is. to ask the officer who rec.ords the cc;mfidential remarks to serve ·a copy of such remarks on the officer concerned before the confidential roll is submitted to the higher authorities so . that his representation against th~ remarks may also reach the higher · authority shortly after the confidential roll is received. This would curtail the delay in taking action on the representation. Suspensions,· adverse remarks in confidential rolls and frequent transfers from one ·place to another are ordered or made many a time without justification and without giving a reasonable opportunity to ·the officer concerned and such actions· surely result in the demoralisation of the services. Courts can. give very little relief in such . cases. The [1984]2 S.C.R. Executive itself should, therefore, devise effective mearis to mitigate the.hardship caused to the officers who are subjected. to such treatmen\.

These questions require to be examined afresh in the light of the experience gained in. recent ·years and solutions should be found to ell1,;inate as f~r as p.ossible 6omplaints against mi;use of these powers by official superiors who may not be well disposed towards the officer . against whom such action. is taken. It is· needle<is to state that a non-disgruniled bureaucracy adds to the efficiency of administration . . The ·appeal is accordingly allowcc! with 'costs. H.S.K. Appeal allowed.