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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: YAMUNA SHANKER MISRA & ANR.

DATE OF JUDGMENT:       21/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted. Heard learned counsel for the parties.      This appeal  by special  leave arises from the Judgment of  the   Allahabad  High  Court,  Lucknow  Bench,  made  on 2.12.1993 in Writ Petition No.9458 (SS)/93.      The adverse  remarks for  the years 1987-88 and 1988-89 were recorded in the confidential reports of the respondent. As a  consequence, he  was not promoted. When claim was made before the  Service Tribunal,  the Service  Tribunal allowed the petition  and quashed  the adverse  remarks recorded for the periods  from 1.12.1988  to 31.3.1989  and  1.4.1989  to 30.9.198. While  recording that,  the Tribunal held that the remarks made  by the  Secretary, Food  & Civil Supplies were due to  malice and  they smack  of arbitrariness.  The  High Court on  a  writ  petition,  by  the  impugned  order,  has affirmed the same. Thus, this appeal by special leave.      In  S.Ramachandra   Raju  vs.  State  of  Orissa  [1994 Supp.(3) SCC  424], this  Court underlined the need to write confidential]    reports     objectively,     fairly     and dispassionately   in    a   constructive    manner    either commenting/downgrading the conduct, character, efficiency or integrity of  the officer  in that  behalf. If  is stated in para 11  that from  the year 1973-74, the performance of the duty  by   the  appellant   therein  was   consistently   as ‘satisfactory’ to  ’ ‘fair’  except for  the year 1987-88 in which year  he dropped  down suddenly as an average or below average teacher.  In that  behalf it  was held that "when he was a  responsible teacher and he had cordial relations with the student  community,  and  was  taking  pains  to  impart lessons to  the students,  would it  be believable  that  he avoids to take classes and drops down "if not watched"? When anterior to or subsequent to 1987-88 he was a man of ability and of  integrity,  the  same  whether  would  become  below average  only   for  the   academic  year   1987-88  without discernible  reasons.   it  would   speak  volumes   on  the objectivity of  assessment by the reporting officer i.e. the Principal. This  conduct is  much to  be desired.  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 prejudices

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or  proclivity   or  predilections  and  to  make  objective assessment. It  is needless  to emphasise  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  for   the  above objectives if  not strictly  adhered to  in making an honest assessment, the  prospect  and  career  of  the  subordinate officer is  bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. The constitutional  and statutory  safeguards given  to  the government employees  largely became  responsible to display callousness and  disregard of  the discharge of their duties and make  it  impossible  to  the  superior  or  controlling officers to  extract legitimate  work from them. The writing of the confidential is contributing to make the subordinates work  at  least  to  some  extent.  Therefore,  writing  the confidential  reports  objectively  and  constructively  and communication thereof  at the  earliest would  pave way  for amends by  erring subordinate  officer  or  to  improve  the efficiency in  service. At  the same  time, the subordinate- employee/officer should  dedicate to  do hard work and duty; assiduity  in  the  discharge  of  the  duty,  honesty  with integrity in  performance thereof which alone would earn his usefulness  in   retention  of   his  service.   Both  would contribute to  improve excellence in service." In that case, on account  of the  vague remarks made for the year 1987-88, the appellant therein was compulsorily retired from service. This Court,  after looking into the entire record, set aside the order.  In Moti  Ram Deka  vs. General Manager [(1964) 5 SCR 683],  a Bench of seven Judges had held that in a modern democratic State,  the efficiency  and  incorruptibility  of public administration  is of  such  importance  that  it  is essential to  afford to  civil servants  adequate protection against capricious  action from their superior authority. If a public servant is guilty of misconduct, he should no doubt be   proceeded   against   promptly   under   the   relevant disciplinary rules,  subject of  course, to  the  protection under   Article    311(2);   but    to   maintain   honesty, straightforwardness  and   efficiency  in   permanent  civil servants, it  was pointed out, from the point of view of the State, that  they should  enjoy a  sense of  security  which alone can  make them  independent and  truly  efficient.  In Delhi Transport  Corporation vs.  D.T.C. Mazdoor  Congress & Ors. [1991  Supp.(1) SCC 600 at 739], to which one of us, K. Ramaswamy, J., was a member, the Constitution Bench had held that the Sword of Damocles hanging over the head of a public servant would  inevitably create  a sense of insecurity, The unbridled wide  discretionary powers  would  conceivably  be abused. Thereby  this Court laid emphasis that "an assurance of security  of service  to a  public employee  is essential requisite for  efficiency  and  incorruptibility  of  public administration. It  is also an assurance to take independent drive and  initiative in  the discharge of the public duties to actuate  the goals  of social  justice set  down  in  the Constitution". In  paragraph 275  at 740-41,  it is  further pointed out  that the  Court should take note of actualities of life  that persons  actuated  to  corrupt  practices  are capable to  manoeuvre with  higher echelons  in diverse ways and also  camouflage their activities by becoming sycophants or cronies  to the  superior officers.  Sincere, honest  and devoted subordinate  officers are unlikely to lick the boots

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of the  corrupt superior  officer. They  develop a  sense of self-pride for  their honestly,  integrity  and  apathy  and inertia towards  the corrupt  and tend  to undermine or show sings  of  disrespect  or  disregard  towards  the  corrupt. Thereby, they  not only  become inconvenient  to the corrupt officer but  also stand  as an  impediment  to  the  ongoing smooth symphony  of corruption  at a  grave  risk  to  their prospects in  career or  even to their tenure of office. The term "efficiency"  is an  elusive and  relative one  to  the adept capable  to be  applied in diverse circumstances. It a superior officer develops liking towards sycophant, corrupt, he would  tolerate him  and find him to be efficient and pay encomiums and  corruption in such cases stand no impediment, When he  finds a  sincere, devoted  and honest officer to be inconvenient, if  is easy  to cast  him/her off  by  writing confidential,  reports   with  delightfully  vague  language imputing to  be  ‘not  up  to  the  mark’,  ‘wanting  public relations’ etc.  At times they may be termed to be ‘security risk’ to  their activities,  Thus, they  spoil the career of the honest,  sincere and  devoted officers. Instances either way are  galore in  this regard.  Therefore,  one  would  be circumspect, Pragmatic and realistic to these actualities of life  while  angulating  constitutional  validity  of  wide, arbitrary, uncanalised  and unbridled discretionary power of dismissal vested  in an  appropriate authority  either by  a statue or a statutory rule."      In State Bank of India & Ors. vs. Kashinath Kher & Ors. [(1996) 8 SCC 762 AT 771 in para 15], this Court pointed out that the  object of  writing the confidential report is two- fold, i.e.,  to give an opportunity to the officer to remove deficiencies and to inculcate discipline, Secondly, it seeks to  serve   improvement  of   quality  and   excellence  and efficiency of  public service. This Court in Delhi Transport Corpn. case  (supra) pointed  out the pitfalls and insidious effects  on  service  due  to  lack  of  objectives  by  the controlling  officer.  Confidential  and  character  reports should, therefore,  be written  by superior  officers higher above the  cadres.  The  officer  should  show  objectivity, impartiality and  fair  assessment  without  any  prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of  the individual officer. Lest the officers get demoralised which  would be  deleterious to the efficacy and efficiency of  public service.  Therefore,  they  should  be written by  a superior  officer of  high rank.  who are such high rank  officers is  for the  appellant to   decide.  The appellants have  to prescribe  the officer in rank above the officer  in   rank  above   the  officer   who  has  written confidential report  to review  such report.  The appointing authority or  any equivalent  officer would  be competent to approve the  confidential reports  or character  rolls. This procedure would  be fair  and reasonable.  The reports  thus written  would   form  the   basis  for   consideration  for promotion.  The   procedure  presently  adopted  is  clearly illegal, unfair  and unjust".  In U.P.  Jal Nigam & Ors. vs. Prabhat Chandra Jain & Ors. [(1996)2 SCC 363 at 634 para 3], this court  had held  that while  writing  the  confidential reports, if  the official  were to  be downgraded  from  the previous reports,  "as we  view it, the extreme illustration given by  the High  Court may  reflect  an  adverse  element compulsorily communicable,  but if  the graded  entry is  of going 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 that  is required  by  the  authority recording  confidentials  in  the  situation  is  to  record

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reasons for  such downgrading  on the  personal file  of the officer concerned,  and inform him of the change in the form of  an   advice.  If  the  variation  warranted  to  be  not permissible,  then   the  very  purpose  of  writing  annual confidential reports would be frustrated. Having achieved an optimum level,  the employee  on his part may slacken in his work, relaxing  secure by  his  one-time  achievement.  This would be an undesirable situation. All the same the sting of adverseness must,  in all  events, not  be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry  should always  be qualitatively  damaging may not be  true. In  the instant  case we have seen the service record of  the first respondent. No reason for the change is mentioned. The  downgrading is reflected by comparison, This cannot sustain.  Having explained in this manner the case of the first  respondent and  the system that should prevail in the jal  Nigam, we  do not  find any difficulty in accepting the ultimate result arrived at by the High Court."      In Sukhdeo vs. Commissioner Amravati Division. Amravati & Anr. [(1996) 5 SCC 103 paragraph 6] this Court has pointed out that "It is settled law that when the Government resorts to compulsorily  retire a  Government  servant,  the  entire record of  service, particularly,  in  the  last  period  of service is  required to be closely scrutinised and the power would be  reasonably exercised.  In State  Bank of India vs. Kashinath Kher  [JT (1996)  2 SC  569 at  578 para 15], this Court had  held that  the controlling  officer while writing confidential and character roll report, should be a superior officer  higher  above  the  cadres  of  the  officer  whose confidential reports  are written.  Such officer should show objectivity, impartiality  and fair  assessment without  any prejudice whatsoever with highest sense of responsibility to inculcate in  the officer’s  devotion to  duty, honestly and integrity so  as to  improve excellence  of  the  individual officer, lest  the officers  get demoralised  which would be deleterious to be efficacy and efficiency of public service. In that  case it  was pointed  out that confidential reports written and  submitted by  the officer of the same cadre and adopted without  any independent  scrutiny and assessment by the committee  was held  to be  illegal. In  this case,  the power exercised  is illegal  and it  is not expected to from that high  responsible officer who made the remarks. When an officer makes  the remarks,  he  must  eschew  making  vague remarks causing  jeopardy to  the service of the subordinate officer. He  must bestow  careful attention  to collect  all correct  and   truthful  information   and  give   necessary particulars when  he seeks  to make  adverse remarks against the subordinate  officer whose  career prospect  and service were in  jeopardy. In this case, the controlling officer has not used  due diligence  in  making  remarks.  It  would  be salutary that  the  controlling  officer  b  before  writing adverse remarks  would give  prior sufficient opportunity in writing by  informing him  of the  deficiency he noticed for improvement. In  spite  of  the  opportunity  given  if  the officer/employee does  not  improve  then  it  would  be  an obvious fact and would form material basis in support of the adverse remarks.  It should  also be  mentioned that  he had given prior  opportunity in  writing for improvement and yet was not  availed of  so that  it  would  form  part  of  the record."      It would, thus, be clear that the object of writing the confidential reports  and making  entries in  the  character rolls is  to give  an opportunity  to a  public  servant  to

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improve excellence.  Article  51A  (j)  enjoins  upon  every citizen the  primary duty  to constantly  endeavour to prove excellence, individually  and collectively,  as a member  of the group.  Given an  opportunity, the individual strives to improve excellence  and thereby efficiency of administration would be  augmented. The  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  proclivity.  If, despite given  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.      It  is   seen  from  the  record  that  the  respondent maintained constantly  good record  earlier to  the  adverse remarks made  for the aforesaid period. It would appear that subsequently also  he had  good confidential  reports on the basis of  which the clouds over his conduct were cleared and he was  given further promotion. Mr. Rakesh Dwivedi, learned Advocate General,  in fairness,  therefore, has  stated that since  the   respondent  has   been  regularised  after  the subsequent good  reports, the  dispute does  not survive for adjudication  on  merits.  But  the  counter  comments  made against him  by the  Secretary were warranted in view of the material on  record. He brought to our notice that as on the date when  the entries  were made, the vigilance enquiry was pending against  the respondent  and, therefore, the adverse remarks came  to be  made.  The  findings  recorded  by  the Tribunal  of   malice  and  arbitrariness  on  the  part  of Secretary as  affirmed by  the High  Court are not warranted for two  reasons. Firstly,  since the  Secretary was not co- nominee to the proceedings and had no opportunity to explain the position,  it would  be violative  of the  principle  of natural justice.  Secondly, since  the vigilance enquiry was pending. unless  the officer was exonerated and cleared from the cloud,  necessarily, the  Secretary could  not clear the conduct and integrity of the officer. Therefore, the adverse remarks cannot be said to be to smack of arbitrariness,      The  appeal  is  accordingly  allowed  only  the  above extent. No costs.

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