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Shiv Shanker Lal v. State Of U.P. & Others - WRIT - A No. 25395 of 2002  RD-AH 2050 (23 August 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 25395 OF 2002
Shiv Shanker Lal ------------- Petitioner
Secretary of U.P. Public Works
Department, Lucknow & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
This writ petition has been filed for quashing of the adverse entry awarded to the petitioner-an Executive Engineer, for the period of 1.8.1999 to 31.3.2000 in two parts (Annex. 2) and for quashing the order dated 15-10-2001 by which his representation against the said entry has been rejected.
The facts and circumstances giving rise to this case are that petitioner while posted as Executive Engineer, the respondent no 2 awarded him adverse entry for the aforesaid period, and against the same petitioner submitted a representation. The same has been rejected by the competent authority vide impugned order dated 15.10.2001. Hence this petition.
Shri R.C. Gupta, learned counsel for the petitioner has submitted that the procedure for recording the A.C.Rs. have not been complied with. The unwarranted adverse entry has been recorded by the Superintending Engineer, which has been affirmed by the accepting authority. The adverse entry withholding the integrity of an employee cannot be recorded without holding the disciplinary proceedings, as provided by the government order dated 7.8.1982. More so, the representation against the adverse entry must be decided within a period of 20 days as provided under the U.P Sarkari Sewak (Pratikool Varshik Gopaniya Akhya Key Virudh Pratyavedan Aur Sambandh Mamlon ka Niptara) Niyamawali, 1995 (hereinafter referred to as the Rule 1995). Thus, the adverse entry is liable to be quashed.
On the other hand, Shri C.K. Rai the learned Standing Counsel, appearing for the respondents has submitted that the adverse entry has been given by the competent authority after assessing the fact-situation and the same have been recorded on the basis of the record. The government order of 1982 which provides for not granting the adverse entry withholding the integrity without holding the disciplinary proceedings is not applicable in the instant case, for the reason that the said government order provides not to give adverse entry withholding the integrity on the complaint or charge, if the Disciplinary proceedings have already been initiated. As in the instant case the disciplinary proceedings had not been initiated, the said government order does not apply. More so, the accepting authority has applied his mind while considering the representation by the petitioner and agreed with the entry given by the authority concerned. The petition is liable to be rejected.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
In Chandra Gupta Vs. Secretary Government of India & ors, (1995) SC 44; Sukhdeo Vs. Commissioner Amravati Division & Anr., (1996) 5 SCC 103; and State Bank of India Vs. Kashinath Kher AIR 1996 SC 1328, while dealing with the issue of writing the A.C.Rs. the Apex Court observed that the superior officer, must show impartiality, objectivity and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the Government officer, lest the officer can be demoralized which would be deleterious to efficiency and efficacy of public servants.
In S. Ramchandra Raju Vs. State of Orissa, 1994 Supp. (3) SCC 424 the Hon'ble Apex Court explained the scope, object and proper mode of writing the A.C.Rs. The Court held as under:-
"This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the reporting officer to eschew his subjectivity and personal approaches or proclivity or predilections as to make objective assessment. It is needless to emphasize that the career prospects of a subordinate officer / employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer / employee concerned during the relevant period or the above objectives if not directly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy..........Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amend by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate employee /officer should dedicate to it hard work and duty; assiduity in the discharge of the duty honesty with integrity in performance thereof which alone would earn his usefulness in relation to his service".
In U.P. Jal Nigam & ors. Vs. Prabhat Chandra Jain & ors, AIR 1996 SC 1661, the Apex Court held that if the graded entry is going to a step 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 confidential reports 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.
In Union of India & Ors. Vs. E.G. Nambodiri & ors., AIR 1991 SC 1216 the Hon'ble Supreme Court considered the contention as to whether a representation against the adverse entry can be rejected by a non-speaking order. The Court held as under:-
"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 reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He 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 .........In Governmental functioning before any order is issued, the matter is generally considered at various levels and the reasons and comments are contained in the notes on the file. The reasons contained in the file and even the competent authority to formulate its opinion if the order is communicated to the Government servant rejecting the representation does not contain any reason, the order cannot be held to be bad in law. 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. It is always open to an administrative authority to produce evidence aliunde before the Court to justify its action."
Similar view has been reiterated by the Hon'ble Apex Court in Ram Kumar Vs. State of Haryana, AIR 1987 SC 2043; Somdutta Vs. Union of India & ors., AIR 1989 SC 414; S.N. Mukherji Vs. Union of India & ors., (1990) 4 ASCC 594; State Bank of Bikaner & Jaipur Vs. Prabhu Dayal Grover, (1995) 6 SCC 279.
In State of U.P. Vs. Narendra Nath Sinha, 2001 AIR SCW 3380, the Hon'ble Supreme Court held that while grading an officer/employee the reporting officer may record some reasons/justification in support of such an entry for the reason that when he is graded down by the review officer and accepting officer the authority may also give reasons for down grading him.
In State of U.P. Vs. Yamuna Shanker Mishra & Anr. AIR 1997 SC 3671 the Hon'ble Supreme Court dealt with issue and observed as under:-
"Officer entrusted with the 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, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials 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 officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an 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. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
Scope of judicial review of the ACR or in cases of expunging the adverse entry is very limited and the writ Court can interfere only in exceptional circumstances, for compelling reasons, where it comes to conclusion that there was no occasion for the authority concerned to record adverse entries. ( Vide Badri Nath Vs. Government of Tamil Nadu & Ors., (2000) 8 SCC 395).
Thus, in view of the above, the law on this issue can be summarised that the superior Court should be reluctant to make any adverse remark against the judicial officers. Their confidential reports should be filled up with all sincerity without any ill-will or affection on the basis of their performance. There must be some material on the basis of which the adverse remarks may be made by the Reporting Officer. The reviewing authority, if does not agree with the remarks made by the Reporting Officer, should record the reasoning before down grading the ACRs. The instance case required to be considered in the light of aforesaid settled legal proposition.
Two impugned entries read as under:-
"1.6.99 se 11.2.2000 tak
Ukta avadhi ka vivaran alag se Shri S.S.Lal Adhishasi Abhiyanta dwara na bhejkar badniyati se ukta vivaran sidhe pramukh Abhiyanta ko bhijwa diya hai. Yah acharan ko sangdidh pradarshit karta hai. Inhone Banda shahar men inke karyalaya se thik bagal men ho rahe karyo judgment and order dated ki ek mahatwapurna B.M./M.S.S. Ka karya tha, par niyantran nahi rakha tatha is karya ka bhugtan adeshit deyak ka bhugtan C.C.L. Va aavantan prapt hone par bhi lagbhag 06 mah tak lambit rakha hai. Is karya ki testing, anveshnalaya, Lucknow se karayee gayee, jisme karya me prayukt patthar ki gitti ka anupat/size galat paya gaya. Apne niji swarthvash inhone Shri J.K. Singh, J.E. Ko Mu. A. Jhansi ke adesho ke vavjud nirman karyon se nahin hataya, judgment and order dated ki kharab karya kara rahe the.
Nahar Patri Yojna ke karya tatha rajya margo ke kinare kharanja lagane ke karyon men koi ruchi nahin li tatha January, 2000 tak pragati lagbhag shunya rahi. Kul milakar inke dwara karyo men ruchi nahin li gayee, niyantran shithil raha tatha imandar vyakti nahin hain. Pronnati pane ke kabil nahin hain. Shreni "Nikrisht"
The representation against the said adverse entry has been rejected by the impugned order dated 15th October, 2001.
Adverse entry itself makes it clear that the entry was based on certain tests/analysis made in the laboratory. The size of the concrete used in the construction of the road was not found as per the specification. Petitioner did not remove the Junior Engineer, named Shri J.K. Singh in spite of the orders of the high official dated 31-1-2000 as he was not supervising the work properly. Petitioner did not take any interest in the work executed under his supervision, and no progress could be made upto January, 2000 in construction of the road. In the supplementary affidavit filed by the State it has been pointed out that the adverse entry was based on actual performance of the petitioner. There was no malice or ill will in recording the said entries. No allegation of mala fide has been made against the reporting officer, nor he has been impleaded by name. Therefore, even the allegation of mala fide, if any, cannot be considered. (Vide J.M. Banawalikar Vs. Municipal Corporation, Delhi & ors., AIR 1996 SC 326; State of Bihar & ors. Vs. P.P. Sharma, 1992 (Suppl) 1 SCC 222; I.K. Mishra Vs. Union of India & ors., (1997) 6 SCC 228; and All India State Bank Officers Federation & ors. Vs. Union of India & ors., JT 1996 (8) SC 550).
It is evident from the supplementary counter affidavit filed by the State that petitioner did not take any interest in execution of the work assigned to him for which a sum of Rs.20 lacs had been sanctioned, and for the same the amount had been made available to him. The quality of work suffered because of non removal of Shri J.K. Singh, Junior Engineer, who was not supervising the work properly, though for his removal from the work, orders were passed by the higher authorities vide order dated 31.1.2000 (Annex. 2 to the supplementary affidavit). Several documents have also been filed which fortifies the view that the work had not been executed by the petitioner in accordance with the specifications.
Thus, in view of the above, it cannot be held that the adverse entries given to the petitioner were not warranted. In a limited jurisdiction of judicial review, we do not find any ground to interfere. It is accordingly dismissed. No costs.
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