Zakir Hussain v. State of Haryana & Ors.

Mr. Jai Vir Yadav, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner seeks quashing of the adverse remarks endorsed in his Annual Confidential Report for the period from

1.4.2006 to 29.11.2006 (Annexure P-1). Prayer also is to quash the order dated 9.11.2009 vide which his representation against this adverse remarks was rejected. Having been enrolled as Constable, the petitioner was promoted to the rank of Assistant Sub Inspector in the year 2003. On 6.8.2007, the petitioner was communicated the adverse remarks endorsed in his A.C.R for the period from 1.4.2006 to 29.11.2006. CIVIL WRIT PETITION NO.1875 OF 2010 :{ 2 }: The petitioner would attribute the adverse remarks on account of spite carried by Superintendent of Police, Mohinder Singh Sheoran (respondent No.6) due to an old incident, where the petitioner could not help the later in saving his friend. It is stated that Narender Singh, a close friend of respondent No.6, was involved in a death of person in police custody. The person who died, was closely related to the petitioner. Respondent No.6 approached the petitioner for saving his friend by asking him to get the matter compromised between his friend and relatives who had filed the complaint.

The petitioner was unable to help respondent No.6 and so he was looking for an opportunity to take revenge, which he got when respondent No.6 was posted as Superintendent of Police, Faridabad, and the petitioner was posted as Assistant Sub Inspector. The petitioner would allege that on the basis of a false complaint, charge sheet was issued to him on 8.6.2007 and the impugned adverse remarks were recorded in the A.C.R. The Enquiry Officer, however, exonerated the petitioner and on that basis he filed a representation for setting-aside the adverse remarks. Still his representation was rejected. Even liberty was given to the petitioner to file a fresh representation while disposing of earlier writ petition filed by him but still, his plea has been rejected and he is, therefore, again before this Court through the present writ petition. In the reply filed on behalf of the respondents, it is disclosed that a complaint was received against the petitioner, alleging that the petitioner had called one Hukam Singh on the allegation that said Hukam Singh had purchased some iron scrap from School children.

The petitioner allegedly freed said Hukam CIVIL WRIT PETITION NO.1875 OF 2010 :{ 3 }: Singh after accepting an illegal gratification of Rs.1500/-. The petitioner had also asked for cooked mutton from said Hukam Singh, which ultimately led to the complaint against him, for which action was initiated. On the basis of preliminary enquiry, the petitioner was placed under suspension. A regular departmental enquiry followed but the petitioner was exonerated of the allegation made against him. Without much justification, the respondents have made reference to the past record of service of the petitioner, which may not have much relevance for deciding the issue involved and raised in the present writ petition. The respondents, however, have justified the recording of the adverse remarks in the A.C.R and so also the order rejecting the representation filed by the petitioner. It is stated that the adverse remarks are based on the observations of the Reporting Officer and finding that the petitioner is not having a good moral character, being accused of dishonesty, the remarks in the A.C.R are justified.

Mr.Jai Vir Yadav, counsel appearing for the petitioner, would mainly contend that the adverse remarks recorded in the A.C.R of the petitioner are because of malice carried by the initiating Officer and, thus, can not be sustained. The petitioner has impleaded the Initiating Officer in his private capacity and he has filed a separate reply. Respondent No.6 rather would point out that there were several verbal complaints against the petitioner, apart from the complaint in question received by him and he had rightly recorded the A.C.R in his capacity as Initiating Officer. Respondent No.6 has denied the contents of Para 4 of the petition where the allegation of malafide and the reasons for which respondent No.6 had come to CIVIL WRIT PETITION NO.1875 OF 2010 :{ 4 }: develop malice against the petitioner are made. As per respondent No.6, he never approached the petitioner for saving Narender Singh.

The petitioner has not chosen to file any replication to the averment as made in the reply. Mere assertions in the petition, which were duly denied in the reply and not pursued thereafter, would not make the allegation of malafide to stand with some support. Apart from bald assertion so made in the petition, no material is placed on record to substantiate the allegation of malafide. Rather, the State counsel would point out to another reports written by the same Initiating Officer for the period from 1.4.2006 to 17.2.2006, when he had assessed the petitioner as `good'. No remark regarding his integrity was made and it was assessed as `honest'. This, as per the counsel, would belie the allegations of malafide as made against the Inquiry Officer by the petitioner. Original report was placed before me and was returned after perusal. A copy thereof is kept on record. No doubt, the report which is written due to any malafide and is adverse to the interest of an employee, may be interfered while exercising judicial review.

The reference made by the counsel for the petitioner in this regard to the case of Amrik Singh Vs. The State of Haryana, 1995(3) S.C.T. 617, would support his contention. It is further observed in this case that where an officer proceeds to make an adverse report against the integrity of an officer, an onerous obligation is placed on him to be extra continuous and careful. Where such an entry of integrity doubtful is made merely on the basis of the complaint, which is otherwise found incorrect or where there is no material on record and where no reasons are recorded, then the adverse entry made in casual manner may some time be termed as CIVIL WRIT PETITION NO.1875 OF 2010 :{ 5 }: arbitrary and in violation of the instructions. The case set up by the petitioner is that adverse remarks have been made on account of malafides, which he could not establish. Respondent No.6, who had endorsed these remarks, in fact has come forward to say that the remarks were endorsed on the basis of his overall observation in regard to the morals of the petitioners.

In large number of cases, the Courts have come to take a view that the endorsement of remarks in the Annual Confidential Report is primarily on the basis of subjective assessments. Reference here may be made to the decision in R.S.A. No.179 of 1985 decided on 29.1.2010 (The State of Haryana and others Vs. Lajpat Rai), where the court has held that recording of annual confidential report is subjective assessment of public servant and if there is any breach of instructions of the Government while recording confidential report, then the report does not get vitiated. Further reference in this regard can be made to the judgements in the cases of Vijay Parkash Versus State of Haryana, 2000 (1) S.C.T. 1076, Dharam Singh Versus State of Haryana, 2001 (2) S.C.T. 1139 and Om Parkash Conductor Versus State of Haryana and others, 2006(2) S.C.T. 408. In Amrik Singh's case (supra) it is observed that while exercising jurisdiction under Article 226 of the Constitution of India, the High Court does not act as a Court of appeal while making adjudication on administrative matters.

In Kuldip Singh Vs. State of Punjab, 1992 (5) S.L.R 189, it is held that

recording of annual confidential reports is subjective and administrative nature. The breach of administrative CIVIL WRIT PETITION NO.1875 OF 2010 :{ 6 }: instructions which are in the nature of guidelines for the internal consumption by the officers at the time of recording of annual confidential reports and expunction of adverse remarks etc. do not confer upon the officer concerned a right to challenge in the Court of law.

Thus, there is no rule of law, which would require the Initiating Officer to share the material with the officer reported upon while endorsing adverse remarks. In view of the above, there is no merit in the writ petition and the same is accordingly dismissed. September 27, 2010 khurmi ( RANJIT SINGH ) JUDGE