State of
U.P. Vs. Yamuna Shanker Misra & ANR
[1997] INSC 209 (21 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEAD NOTE:
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 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
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 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 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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