G.S. Singhvi, J.@mdashThe petitioner has filed this writ petition with a prayer that I the respondents be directed to convene a review Departmental Promotion Committee for consideration of his case for promotion to the junior scale of Rajasthan Police Service against the vacancies of 1991-92, ignoring the adverse remarks made La his Annual Performance Appraisal Report (APAR) 1984-85 and, in case he is found I suitable then to promote him to the Junior scale of Rajasthan Police Service benefits regarding seniority, fixation of pay etc.
2. Briefly stated, the case of the petitioner is that he joined the Police Department of the Government of Rajasthan as Sub-Inspector on 1.8.1966. He was promoted as Inspector of Police on 13.3.80. He has passed promotion cadre course while holding the post of Inspector of Police and has been confirmed on that post by order dated 14.5.85. He is eligible to be considered for promotion to the Rajasthan Police Service. He has claimed that in the seniority list prepared for the purpose of the Departmental Promotion Committee, his name appears at Serial No. 49. The name of Shri Birbal Ram Vishnoi appears at Serial No. 46. He has been promoted on the post of Rajasthan Police Service against the vacancies of 1990-91. The petitioner has stated that 37 vacancies in the ordinary scale of Rajasthan Police Service were available for the year 1991-92 and since the zone of consideration against these vacancies is two times, the petitioner falls within the zone of consideration. He has pleaded that his service has been throughout satisfactory and he has been given 86 commendation certificates and 26 cash awards during his service career and there is nothing adverse in his A.P.A.R. except for a part of the year 1984-85. He has a stated that no regular or departmental enquiry or preliminary enquiry is pending against him. The Departmental Promotion Committee met on 13.5.1991 and it made certain recommendations for the post of Rajasthan Police Service. (Junior Scale). However, the name of the petitioner has not been included in the list of persons recommended by the DPC which met on 13.5.91. This has happened on account of the adverse remarks in the Annual Performance Report of the petitioner for the year 1984-85.
3. The petitioner has pleaded that during the period of 1985 to 1991 a number of commendation certificates and cash rewards have been given to the petitioner. Some of these have been given by the Superintendent of Police, Sawai Madhopur, under whom he was working and who had highly appreciated the work of the petitioner. During the year 1984-85 the petitioner had worked satisfactorily petitioner stated that he apprehends promotion of the persons junior to him to the post of Rajasthan Police Servide (Junior Scale).
4. In reply to the writ petition, the respondents have stated that the Departmental Promotion Committee for 37 vacancies of the Junior Scale of Rajasthan Police Service (1991-92) was held on 14.5.91. The zone of consideration was three times the number of vacancies for general category candidated and five times for the members of Scheduled Caste and Scheduled Tribes. The case of the petitioner was considered by the Departmental Promotion Committee. Since he was having adverse remarks in his A.P.A.R. for the year 1984-85 his name has not bee recommended for promotion. The adverse entry was communicated to the petitioner vide letter dated, 11.10.89, which was sent for service on the petitioner through the D.I.G. Jaipur Range, Jaipur. The letter of the Dy. Inspector General of Police (Headquarters) was sent to the Superintendent of Police, Jaipur City, by the Deputy Inspector General of Police, Jaipur Range, Jaipur, alongwith his letter dated 18.10.89. The Superintendent of Police, Jaipur City, Jaipur got served the copy of the letter dated, 11.10.89 upon the petitioner. A receipt on duplicate copy was obtained and was despatched to the Dy. Inspector General of Police (Headquarters) vide letter dated, 1.11.89. The Superintendent of Police kept one copy of the letter on his file. The original letter alongwith the receipt obtained from the petitioner after despatch has been received in the office of the Dy. Inspector General of Police (Headquarters) on 15.11.89, vide receipt No. 113, but, is not traceable and an enquiry in that regard has also been initiated. The non-petitioners, have claimed that no fundamental right vests with the petitioner to claim promotion. He had a right of consideration and that right has been fully recognised and accepted by the non-petitioners. Since his seven years'' service record is not satisfactory and he is having adverse remarks for the year 1984-85, he has not been recommended for promotion. It has then stated that the petitioner has not made any recommended for promotion. It has then stated that the petitioner has not made any representation against the adverse remarks and, therefore, the same have become final. Regarding Commendation Certificates and Cash Rewards it has been stated in para-5 of the reply that such commendation Certificates and cash Rewards are generally available for every incumbent as they are necessary under the Police Force discipline, but, these cash rewards and Commendation Certificates are not sufficient to prove that a person possesses a good record. A minor penalty was also imposed on the petitioner on the basis of an enqiury held under Rule-17 of 1958 Rules.
5. In his rejoinder, the petitioner has asserted that letter dated, 11.10.89 was neither served upon him nor was received by him. He has denied the statement of the non-petitioners that the Superintendent of Police, Jaipur City, Jaipur got copy of the letter dated 11.10.89 served upon the petitioner. Thus, the adverse remarks for the year 1984-85 were never communicated to him. Moreover, alleged communicationof adverse remarks after a lapse of more than 4 years was absolutely unreasonable, improper and unjustified. The delayed communication clearly defeated the object of the communication of adverse remarks. The petitioner has stated that during the year 1984-85, he had worked under Shri K.C. Bains, the then Superintendent of Police, Sawai Madhopur and also under Shri Bhaskar Chatterji, the then Superintendent of Police, Dholpur. According to the petitioner he had worked for more then three months under both the officers and, therefore, each one of them must have given remarks. The non-petitioners have acted on the basis of uncommunicated adverse remarks, therefore, the recommendation of the Departmental Promotion Committee is vitiated so far as he is concerned.
6. A replica to rejoinder has been filed by the non-petitioners. Therein, it has been stated that the adverse remarks in A.P.A.R., were communicated to the petitioner on 26.10.89 by the Circle Officer, Bani Park, Jaipur. Documents Annexures R-3 to R-11 have been placed on record in support of this assertion. In this replica it has been stated that the main reply statement has been made that the service of adverse remarks has been effected through the Superintendent of Police, Jaipur City. However, in fact they were sent to the Circle Officer by the Superintendent of Police & the Circle Officer served the same on the petitioner. Two additional affidavits have also been filed by the non-petitioners on 21.1.1992 of the two additional affidavits, the 1st additional affidavit is of Shri Sunil Mathur, Superintendent of Police, Central Stores, Police Headquarters, by which he has sought to explain the procedure adopted by the police department of obtaining the signatures in token of receipt of documents on loose slips and pasting of the same in Dak Book at subsequent point of time. The second affidavit is of Shri Shiv Lal Joshi, who has claimed that he was posted as Circle Officer, Bani Park, Jaipur City. He has stated that he got original adverse entry served on the petitioner. He has stated that letter dated 26.10.89 was sent by him to the Superintendent of Police alongwith acknowledgement of receipt of the petitioner.
7. Shri A.K. Sharma, learned Counsel for the petitioner, has advanced three fold submission. He has firstly argued that the adverse remarks for the year 1984-85 were not communicated to the petitioner and, therefore, there was no occasion for the petitioner to make representation against the adverse remarks. He submitted that since the adverse remarks were not served on the petitioner, they could not have been acted upon for the purpose of supersending the petitioner in the matter of promotion to the Rajasthan Police Service (Junior Scale). The second argument of Shri Sharma is that even if, adverse remarks for the year 1984-85 are taken to have been communicated to the petitioner, the very fact that they were communicated after almost four years, has completely frustrated the object with which they were to be communicated. Shri Sharma referred to the various instructions issued by the Department of Personnel and Administrative Reforms and argued that on account of gross delay in the communication of adverse remarks, the same must be treated as meaningless. It was not justified for the non petitioner Government to make them basis for superseding the Sharma then argued that the Departmental Promotion Committee as well as the Government have completely failed to take into consideration the fact that for the year 1984-85, two entries had been made by the two different Superintendent of Police. The adverse remarks related to his working for the period of just four months. For the first eight months the Superintendent of Police has not given any adverse remarks, but, has described his work performance to be of average category. Shri Sharma submitted that if seven years'' record of the petitioner is considered, it can be seen that his performance for 7 years being average the same submitted that the entries of his performance for 7 years being average the same cannot be treated as adverse. In addition to this, a large number of commendation certificates and cash rewards given to the petitioner during his service career including the few ones given to him for the period 1984-85, shows that the petitioner could not have been adjudged unsuitable only on the basis of adverse remarks made for a short period of four months. Shri Sharma argued that neither the Departmental Promotion Committee nor the Government made any objective evaluationof the performance of the petitioner before impliedly declaring the petitioner unsuitable for promotion Shri C.K. Garg, learned Additional advocate General, argued that adverse remarks had in fact, been communicated to the petitioner. Shri Garg further argued that the receipt given by the petitioner in token of his having been served with the adverse entries is misssing from the Police Headquarter and, for that an enquiry is going on. Shri Garg submitted that on the basis of copies of various Peon Books and the letters which have been placed on record, the Court should draw an inference that adverse remarks had in fact been communicated. He then argued that once the adverse remarks were communicated to the petitioner and they are to be treated as final, in as much as, no representation was made against the same by the petitioner. The Departmental Promotion Committee was legitimately entitled to consider the adverse remarks and it was justified in not recommending the petitioner for promotion to the Rajasthan Police Service (Junior Scale). Shri Garg then argued that mere delay in communication of the adverse remarks is not sufficient for holding that the adverse entries are unjustified or that the same cannot be acted upon.
8. The first point which requires determination is, as to whether the adverse entries for a part of the year 1984= -85 were communicated to the petitioner by the non-petitioners. While the petitioner has asseted that these entries were not communicated to him and the letter dated, 11.10.89, issued by the Office of the Director General-cum-Inspector General of Police was not served upon him, the non-petitioners have asseted that this communication was delivered to the petitioner through the Circle Officer, Police Station, Bani Park, Jaipur. Annex. R/3 and Annex. R/4 produced by the non-petitioners shows that the letter containing adverse entries was sent from the Police Headquarter to the Superintendent of Police, Jaipur. Annexure R/5 shows that the two letters were sent from the office of the Superintendent of Police Jaipur City, although, in the Column regarding the despatch, three letters are shown to have been sent. Annexure R/6 is a loose slip showing the receipt of the letter sent by the Superintendent of Police. This document contains reference to letter No. 1680-81. Below the signatures there is an interpolation in the date. According to Shri Sharma, learned Counsel for the petitioner, the date was 20th October 1989 and, by subsequent over-writing it has been made as 19.10.89. Annexures R/7, R/8 and R/9 are said to be the records on the basis of which the non-petitioners have tried to show that letter of the adverse entries was communicated to the petitioner. Annexure R/11 is the document, which is an abstract of the Peon Book of the office of the Superintendent of Police by which 14 doucments are shown to have been given to the Dy. Inspector General of Police, Jaipur Range. However, a perusal of the same shows that only 13 documents have been received in that office. Although, Annexure R/6, creates a doubt about the date of receipt of letter No. 1680-81 by the Circle Officer on 19.10.89, but, the subsequent two affidavit filed by the non-petitioners suggest that the letter was received by the Circle Officer. The non- petitioners admit that the copy of the letter of communication bearing the signatures of the petitioner in token of receipt has been misplaced & an enqiury is pending. Thus, it is not possible to record a specific finding on the question as to whether the remarks were communicated to the petitioner or not. It is not possible to conclusively hold in favour of the petitioner that the remarks were not communicated to him. It is a question of fact which can be decided on the basis of evidence, only and the evidence which has been placed on record is not sufficient to record a specific finding on the isssue of communication and noncommunication of the adverse remarks.
9. However, this will not detain me from examining the other contentions raised on behalf of the petitioner. The argument of the learned Counsel for the petitioner is that remarks for the year 1984-85 were communicated to the petitioner after a period of almost four years and, therefore, the very object of communication of the adverse remarks was totally frustrated. The remarks communicated after such a long delay, according to the learned Counsel for the petitioner could not be made basis for superseding the petitioner. Shri Garg has however, argued that delay in communication by itself is not sufficient for ignoring the adverse entries.
10. The Govt. in the Department of Personnel has issued Circular No. F. 14(29)/Karmik/ACR/73; dated March 30, 1976, whereby it has issued detailed instructions relating to the drawal and submission of the Annual Performance Reports. The object of the APARis to make an objective assessment of the performance of an employee. Importance of the Annual Performance Report has been spelt out in this Circular itself. Para-2 of this Circular reads:
Importance of Annual Performance Appraisal Report:
Since the Government have accepted the principal that confirmation, crossing of Efficiency Bar, promotion, grant of pensionary benefits etc. should be based on the assessment of the Annual Performance Appraisal, this matter is of greatest importance for the efficiency and the morale of the service. It is in the interest of Government not less than the empllyees, the value of peoper system opf performance appraisal is recognised by all concerned.
11. Para 11 of this Circular speaks of periodicity and performance of the Annual Performance Appraisal. Ordinarily, the period of appraisal is the financial year.
12. Para 11 (iii) provides that two or more independent reports may be written by the different Reporting Officers in the event of a change of the Reporting Officer, during the course of the year. In such cases, each report should indicate precisely the period to which it relates.
13. Para-16 relates to the communication of the adverse entries in the Annual Peformance Appraisal, time for submission of the representation and disposal thereof. Annexure-A appended to this Circular prescribes the time schedule for the various stages of performance appraisal. The Government servant concerned is required to submit "P" form lates by 10th April, of the year. Reporting Officer is required to write Performance Appraisal Report by 10th May, and it is to be submitted to the Reviewing Officer by 15th Mayt. Adverse entries are to be communicated to the Government servant concerned by 15th June. In case, the Reviewing Officer does not expunge the adverse entries the Government servant is required to submit his representation by 30th June. The decision of the Reviewing Officer has to be made by 31st July and a communication in this regard has to be sent by 5th August of the year. Various other instructions have been issued regarding responsibilities of the Reporting Officer and the Reviewing Officer, the level of assessment etc. Although, these instructions are administrative in nature, nevertheless, they are binding on the Officers of the Government who Act as Reporting or Reviewing Officers. Some minor violation of the instructions issued vide Circular dated, 30.3.76 and as amended from time to time will by itself, not given rise to cause of action to the employees to make grievance against the entries made in the Annual Performance Appraisal Report. But, a wholesale breach or a serious deviation from or non-compliance of these instructions will certainly give rise to an inference that the authorities have not acted fairly. Rather the action is arbitrary and unreasonable.
14. Importance of expeditious communication of the adverse remarks has been high lighted by their Lordships of the Supreme Court in
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 shouts 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 his 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.
It is true that the provisions of Rules 5, 6, 6A & 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.
15. The aforesaid principle of law unmistakably shows that even if the administrative instructionss issued by the govt. are not having the statutory force, they must be substantially complied with. The Government which has issued the instructions and the officers who are bound to act in conformity with the adminstrative instructions and whose actions are the actions of the Government, must be held to be bound by these administrative instructions. The Administrative Authorities which declare that their actions will be governed by certain standards must adhere to those standards. Arbitrary departure from such instructions will vitiate the action taken by such authorities. This principle of administrative law is well ennuunciated by the Supreme Court in
16. So far as the Annual Performance Appraisal Reports are concerned, a learned Single Judge of Calcutta High Court in Himardia Shekhar Jha v. State of West Bengal 1979 (1) SLR 837, held that, " It is essentially necessary that adverse remarks should be communicated to the Officer concerned as early as possible. If this is not done the officer does not get any opportunity to know the defects he may suffer from or to take any steps for rectifying the same, if possible. The delay caused in sending the reports causes prejudice to the emplloyees. The High Court directed the adverse remarks which were communicated after substantial delay (delay of 1 to 3 years) should not weigh with the authorities in considering the prospective career of the petitioner.
17. In T.C. Bhargava v. State of Gujrat 1983 (3) SLR 9, a learned Single Judge of Gujarat High Court has held that, if the remarks have not been communicated in time by the competnet authority such remarks could not have been taken into consideration for assessing performance of the petitioner. In that case, there was a delay of about four years in the communication of the adverse remarks. Basing his judgment on a previous decision of the Gujarat High Court in Dr. B.R. Kuldami v. State of Gujarat 19 G L R 1021, a learned Single Judge specified following propositions:
(1) That the remarks must be communicated to the concerned Government servant as early as possible so that he can make improvement in his performance;
(2) that the remarks which are communicated after the relevant period should be ignored, and
(3) if the representation made against the adverse remarks has not been disposwed of, such remarks cannot be validly taken into consideration for assessing the performance of the officer.
18. In Vaidyanath Mahapatra v. State of Orissa 1989 (4) SLR 220, their Lordships of the Supreme Court held that the purpose of communicating adverse entries to the Government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend and bring about improvement in his work and further if the entries are not justified the communication affords him an opportunity to make representation. If the adverse remarks awarded to a Government servant are communicated to him after several years, the object of communicating entries is ''defeated. Delayed communication of entries results into denial of reasonable opportunity to the Government servant to improve his performance. In that case also, the administrative instructions issued by the Government for communication of the adverse remarks were violated. Their Lordships of the Supreme Court nullified the actionof retirement on Various grounds including the ground of delayed communication of adverse remarks.
19. In the light of the principles referred to hereinabove, it must be held that the time schedule prescribed in the administrative instructions issued vide Circular dated 30.3.76 must ordinarily be complied with. Other paras of the instructions must be followed in substance. A minor breach of these instructions and a slight deviation from the time schedule may not be sufficient for vitiating the action. But, if there is a unexplained and inordinate delay in drawal of the Annual Performance Appraisal Report or communication thereof, serious prejudice results to the Government servant and the very purpose of communication of adverse entries is frustrated. Delay un drawal of the Annual Performance Appraisal Report, communication of adverse entries and disposal of the representation if any, has serious adverse implications on the administration also. The entire scheme of the various rules of making promotions, confirmations, fixation of pay etc. is defeated. Delay in holding of the Departmental Promotion committees on account of non-availability of Annual Performance Appraisal Reports in time or on account of delay in the disposal of the representation made against the remarks results in serious complicztions. It is, therefore, absolutely imperative that those who are charged with the duty of Reporting Officers and Reviewing Officers must make sincere efforts to the schedule, so that the purpose of making of adverse entry and communication thereof, is served. In the present case, no explanation has been offered by the non-petitioners as to why the adverse entries could not be communicated to the petitioner for almost four years after the expiry of the time schedule prescribed in the Appendix-A to the Circular dated, 30.3.76. Total absence of any explanation whatsoever, for this delay has completely frustrated the object under-lying the communication of the adverse remarks. In para 6 of the petition the petitioner has made a specific grievance regarding delay. In the reply, not a word has been said as to what were the reasons for this delay of four years in communication of the adverse remarks. The no-petitioners have admitted that these adverse remarks have been acted upon and the D.P.C. did take into consideration these adverse remarks and ultimately, the petitioner has been superseded on account of these adverse remarks. In view of the complete failure on the part of the non-petitioners to offer any explanation for the delay of four years in communication of the adverse remarks, in my opinion, constitutes sufficient justification for holding that neither the D.P.C. nor Government were entitled to act upon these adverse remarks and to take them into consideration for superseding the petitioner in the Junior scale of Rajasthan Police Service. The aforesaid conclusion of mine is fortified by the fact that during the entire period of seven years, the record of which period was considered by the D.P.C., no other adverse entry exists in the Annual Performance Appraisal Reports of the petitioner, except the adverse entry for the period of about four months of the working of the petitioner during 1984-85. The confidential dossier of the petitioner which was placed before the court for its perusal by the learned Additional Advocate General shows that the petitioner has been described as an average officer during all the years. Nothing adverse has been recorded by the Reporting or Reviewing Officers in his Annual Performance Appraisal Reports. There are two entries in the year 1984-85. In the first eight months of 1984-85, the Reporting Officer has not given any adverse remarks. During the later part of the year 1984-85 (four months) these adverse remarks have been made by the Reporting Officer. In all the years, subsequent to 1984-85 i.e., 1985-86, 1986-87, 1987-88 and 1989-90 nothing adverse exists in the record of the petitioner. In addition to this, it is to be noted that the petitioner''s assertion regarding his having been given 86 commendation certificats and 26 cash rewards during his service career has not been disputed by the non- = petitioners. During the year 1984-85 itself four commendcation certificates have been given to him. Giving of large number of commendation certificates and cash rewards for good performance cannot in any manner, be belittled by a bald statement that commendation certificates for the year 1984-85 will not convert the adverse entries in APAR into good entries. What I want to emphasize is that if the officer has consistently maintained average performance & his work has been appreciated by his superiors by grant of commendation certificates & cash rewards, an adverse entry relating to small period of four months, which was communicated after 48 months of the time schedule fixed in the government instructions, could not have constituted a valid justification for superseding the petitioner. The belated communication of the adverse remarks of four months, which constitute a small fragment of the total period of 44 months, the record of which was under consideration, has resulted in irrparable injury and immense prejudice to the petitioner because no reason has been assigned by a the non-petitioners for supersession of the petitioner except the adverse remarks pertaining to the period of four months. The non-petitioners have not placed before the Court any other material which can justify the supersession of the petitioner in the matter of promotion to the Rajasthan Police Service (Junior Scale).
20. The provisions contained in the Rajasthan Police Service Rules, 1954, provide for promotion to Rajasthan Police Subordinate Officers and others. The criteria of promotion is seniority-cum-merit and merit. The criterial of seniority-cum-smerit has been explained by the Supreme Court in
21. As a result of above discussion, this writ petition must succeed & it is hereby allowed. The consideration of the adverse remarks of four months in the APAr of the year 1984-85 is declared to be illegal. The non-petitioners are directed to reconvene the Departmental Promotion Committee for the purpose of fresh consideration of the case of the petitioner for promotion to Rajasthan Police Service (Junior Scale). In case the petitioner is found suitable for promotion, the non-petitioners should promote him with retrospective effect and give him all consequential benefits. The exercise of convening of review D.P.C., consideration of the ease of the petitioner and passing necessary order in case he is found suitable, must be completed within a period of six months of the submission of the certified copy of this judgment.Parties are left to bear their own costs.
