http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: AMAR KANT CHOUDHARY

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT03/01/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1984 AIR  531            1984 SCR  (2) 299  1984 SCC  (1) 694        1984 SCALE  (1)10  CITATOR INFO :  R          1987 SC 948  (7,10)  RF         1992 SC1020  (23)

ACT:      Natural Justicr-rule  of-adverse report in confidential roll not  to be acted upon to deny promotional opportunities unless  communicated   and   explanation   considered-acting otherwise vitiates decision.

HEADNOTE:      The   appellant,    a   directly    recruited    Deputy Superintendent of  Police in  the Police  Department of  the Respondent State was considered in 1976 for appointment as a member of  the India  Police Service under the provisions of the Indian  Police Service  (Recruitment) Rules,  1954  read with the  Indian Police  Service (Appointment  by promotion) Regulations, 1955.  The Selection  Committee did not include the appellant in the select list because of an adverse entry in his  confidential roll  of  1973-74.  The  appellant  was communicated the  said adverse  entry only in 1977 which was later on  expunged by the State Government in December 1980. There were  also adverse entries in the confidential roll of the appellant  for the  year 1974-75 which were communicated to him  in 1976 and which were also later on expunged by the State Government  in February,  1978 and  October 1980.  The Selection Committee  met again  in March 1981, but this time also did  not include the appellant in the select list while some of  his juniors were included. The appellant questioned the validity of the decision of the Selection Committee in a writ  petition   before  the  High  Court.  The  High  Court dismissed the writ petition at the stage of admission. Hence this appeal.  In this  appeal the  appellant urged  that the Selection Committee  was wrong  in relying  upon the adverse entries which  had been made in his confidential rolls which had not  been either communicated to him or against which he had made representation which had remained undisposed of and which had been subsequently expunged.      Allowing the appeal, ^      HELD: The  principle is well settled that in accordance with the  rules of  natural justice,  an adverse report in a confidential roll  cannot be  acted upon to deny promotional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

opportunities  unless  it  is  communicated  to  the  person concerned so  that he has an opportunity to improve his work and conduct  or to  explain the circumstances leading to the report. Such  an opportunity  is not an empty formality, its object, partially,  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. [302 F]      Gurdial Singh Fijji v. State of Punjab & Ors., [1979] 3 S.C.R. 518; referred to.      In the  instant case,  the case  of the  appellant  for promotion to the Indian 300 Police  Service   Cadre  had  not  been  considered  by  the committee in  a just  and fair  way and  his case  has  been disposed of  contrary to  the principles  laid down  in  the Gurdial Singh  Fijji’s case.  The decisions of the Selection Committee recorded  at its meetings in which the case of the appellant was  considered are vitiated by reason of reliance being placed  on the  adverse remarks  which were  later  on expunged. The  High Court  committed an  error in dismissing the petition  of the appellant. The appellant has made out a case for reconsideration of the question of his promotion to the Indian  Police Service Cadre of the State of Bihar as on December 22,  1976.  The  Selection  Committee  has  now  to reconsider the case of the appellant accordingly. [104 E-G]      R.L. Butail  v. Union  of India & Ors., [1971] 2 S.C.R. 55. distinguished.      In order to avoid a contingency, as arose in this case, the Government  may consider the introduction of a system 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 against him with the  right to make representation to higher authorities against any  adverse remarks.  Another system  which may  be introduced  is   to  ask   the  officer   who  records   the confidential 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 the 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. [105 E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 8491 of 1983.      From the  Judgment and Order dated 5th October, 1982 of the Patna High Court at Patna in C.W.J.C. No. 1420 of 1982.      P.R. Mridul, and M.P. Jha, for the Appellant.      B.B. Singh, for the Respondents      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  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. In 1973 he was eligible to be considered for appointment as  a member  of the Indian Police Service under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

the provisions of the Indian Police Service 301 (Recruitment) Rules,  1954 (hereinafter  referred to as ’the Rules’) read  with the Indian Police Service (Appointment by Promotion) Regulations,  1955 (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 to those who were included in the 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 by the Committee for superseding the appellant based on the confidential roll were these:           "Delayed   disposal    of   pending   papers   and      supervision  notes.  Inadequate  control  over  office,      judgment,  initiative,   sense  of  responsibility  and      management reported  to be just fair. Censured by State      Govt. order dt. 20th Oct., 1975."      The Selection  Committee took the decision to supersede the appellant  at its  meeting held  on December 22, 1976 in view of  the above  entry in  the confidential  roll of  the appellant. It  is not  disputed that  the said adverse entry was communicated to the appellant in the year 1977 after the above meeting  was over.  It appears  that there  were  also adverse entries  in the  annual  confidential  roll  of  the appellant for  the year  1974-75. They  were communicated to the  appellant   in  the   year  1976.  The  appellant  made representations in  respect of  both the  adverse entries in time. His  main grievance was that they had been made by his official superior  who was  biased against  him. The adverse entry made in the confidential roll for the year 1973-74 was expunged by the State Government on December 3, 1980 and the adverse entries  in the confidential roll for the year 1974- 75 were  expunged by  two orders dated February 21, 1978 and October 7,  1980. There  was no  meeting  of  the  Selection Committee from  1977 to  1980. It,  however,  met  on  March 11/12, 1981.  On this  occasion the appellant represented to the Committee  that the  adverse entries in his confidential rolls had  been removed  by the  State Government by various orders and requested them to consider his case for promotion to the  Indian Police  Service Cadre.  On this  occasion the Committee did  not look  into the  confidential rolls of the appellant for  the years 1979-80 and 1980-81 which contained entries very favourable to the appellant for no fault of the appellant. The Committee, however, 302 classified him  as ’good’  but did  not include  him in  the select list  while some  of his  juniors were  included. The appellant  represented   to  the  Committee  and  the  State Government against  the decision taken by the Committee. The Committee again  met on  October 14, 1981. When nothing came out of  the representations made by him, the appellant filed a writ petition questioning the validity of the decisions of the Selection  Committee before the High Court of Patna. The petition was  dismissed at  the  stage  of  admission.  This appeal is  filed by  special leave  against the order of the High Court.      The main  point urged  before us  is that the Selection Committee had committed an illegality in rejecting the claim of the  appellant for  being included  in the select list in the year  1976 by relying upon the adverse entries which had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

been made  in his  confidential rolls  which  had  not  been either communicated  to him  or against  which he  had  made representation which  had remained  undisposed of  and which had been subsequently expunged.      The true  legal position  governing such  cases is laid down by this Court in Gurdial Singh Fijji v. State of Punjab &  Ors,(’)  which  was  a  case  arising  under  the  Indian Administrative   Service    (Appointment    by    Promotion) Regulations, 1955  which more  or  less  correspond  to  the Regulations applicable  to the Indian Police Service. In the above case Chandrachud, C.J. has observed thus:           "The principle  is well-settled that in accordance      with the rules of natural justice, an adverse report in      a confidential  roll  cannot  be  acted  upon  to  deny      promotional opportunities  unless it is communicated to      the person  concerned so  that he has an opportunity to      improve  his   work  and  conduct  or  to  explain  the      circumstances  leading   to   the   report.   Such   an      opportunity is  not an  empty  formality,  its  object,      partially, 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. Unfortunately,  for one  reason or  another,      not arising  out of  any  fault  on  the  part  of  the      appellant, though  the adverse  report was communicated      to him,  the Government  has not  been able to consider      his explanation  and decide  whether   the  report  was      justified. In  these circumstances  it is  difficult to      support the  non-issuance of  the integrity certificate      to 303      the appellant.  The chain  of reaction  began with  the      adverse  report  and  the  infirmity  in  the  link  of      causation is  that no  one has yet decided whether that      report was  justified.  We  cannot  speculate,  in  the      absence of a proper pleading, whether the appellant was      not found  suitable otherwise,  that  is  to  say,  for      reasons other than those connected with the nonissuance      of an integrity certificate to him."      It is  not disputed that the classification of officers whose  cases   are   taken   up   for   consideration   into ’outstanding’,  ’very   good’,  ’good’  or  ’bad’  etc.  for purposes of  promotion to the Indian Police Service Cadre is mainly based  upon the remarks in the confidential rolls. On December 22,  1976, when  the Selection  Committee met,  the adverse remarks in the confidential roll for 1973-74 had not been  communicated   and  the   appellant’s   representation regarding adverse  remarks in  the confidential roll for the year 1974-75  and censure  against him had not been disposed of although  it is  alleged that one Shri Yamuna Ram against whom  also  adverse  remarks  had  been  made  was  included provisionally  in   the  select  list.  When  the  Selection Committee met  on  March  11  and  12,  1981  despite  State Government’s suo motu decision not to retain adverse remarks for the  year 1976-77  on records,  the same  had  not  been removed  from   the  confidential   roll.  This   must  have influenced the  decision of  the Selection  Committee. It is also seen  that the  confidential rolls of the appellant for the  year   1979-80  and  1980-81  which  contained  entries favourable to  the appellant  were  not  placed  before  the Selection Committee.  On October  14,1981 when the Selection Committee met,  it does  not appear  to have  considered the representation  made  by  the  appellant  against  his  non- selection. In  addition to  all these,  the State Government has expunged  the adverse  remarks by  its orders  made from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

time to  time. These  facts  are  not  controverted  by  the respondents.      The facts  of this  case are  distinguishable from  the facts involved  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 appellant therein  for the  year 1964  contained an  adverse entry and  he had  made a  representation regarding it, When the Departmental Promotion Committee met in March, 1966, the appellant’s representation  regarding the  adverse entry  of 1964 was  not placed before it and a decision adverse to the appellant was  taken by  the Committee  without reference to the said representation. The 304 appellant contended  before this  Court that the omission to consider his  representation before  the date  of meeting of the Committee vitiated its decision. The Court held that the omission either  to place the said representation before the Committee or  its non-consideration  before the  date of the meeting had  no effect  on the  decision of the Committee as the representation  had actually  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.  Here the  adverse entries in question have in fact been  expunged by the State Government subsequently. 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 representation were to  be accepted  and in  consequence  the  confidential report was  altered or the adverse entries were expunged 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   to   the uncontroverted   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 considered 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 Selection Committee  recorded at  its meetings  in which the case of  the appellant was considered are vitiated by reason of reliance  being placed  on the adverse remarks which were later on  expunged. The  High Court  committed an  error  in dismissing the  petition of  the appellant and its order is, therefore, liable  to be set aside. We accordingly set aside the order  of the High Court. We hold that the appellant has made out  a case  for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as  on December  22, 1976 and if he is not selected as on that  date for  being considered  again as  on March  12, 1981. If  he is  not selected  as on March 12, 1981 his case has to  be considered  as on October 14, 1981. The Selection Committee has  now to  reconsider the  case of the appellant accordingly  after  taking  into  consideration  the  orders passed by  the State  Government subsequently on any adverse entry that may have been made 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 direction to the respondents to reconsider the case of the 305 appellant as  stated above. We hope that the above direction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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 behind 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 by  a higher authority or the State Government or the Central  Government, as  the case  may  be,  some  years later, as  it has  happened in  this case, by which time any evidence that  may be  there to  show that  the entries made were baseless  may have  vanished. The  predicament in which the officer  against whom  adverse remarks  are made is then placed can  easily be  visualised. Even  the authority which has got  to pass orders on the representation of the officer will  find   it  difficult   to   deal   with   the   matter satisfactorily  after  a  long  interval  of  time.  In  the meanwhile the  officer  concerned  would  have  missed  many opportunities which would have advanced his prospects in the service.  In   order  to   avoid  such  a  contingency,  the Government may  consider the  introduction of  a  system  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 against him with the  right to make representation to higher authorities against any  adverse remarks.  This course  may obviate many times  totally   baseless  remarks   being   made   in   the confidential  roll   and  would   minimise  the  unnecessary suffering to  which the  officer concerned  will be exposed. Another system which may be introduced is to ask the officer who records the confidential 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 the 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 306 Executive itself  should, therefore,  devise effective means to mitigate  the hardship  caused to  the officers  who  are subjected to  such treatment.  These questions require to be examined afresh  in the  light of  the experience  gained in recent years  and solutions  should be found to eliminate as far as possible complaints against misuse of these powers by official superiors  who may not be well disposed towards the officer against whom such action is taken. It is needless to state  that   a  non-disgruntled  bureaucracy  adds  to  the efficiency of administration.      The appeal is accordingly allowed with costs. H.S.K.                                       Appeal allowed. 307

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7