Rajsamand, Distt. Rajsamand (Raj.) v. State of Rajasthan through its Secretary, Panchayati Raj

Judgment

1. State of Rajasthan through its Secretary, Panchayati Raj and Rural Development Department, Govt. of Rajasthan, Government Secretariat, Jaipur.

2. Secretary, Department of Personnel, Government of Rajasthan, Government Secretariat, Jaipur.

3. Secretary, Agriculture Department, Government of Rajasthan, Government Secretariat, Jaipur. ----Respondents For Petitioner(s)

: Mr. Ashok Bansal with Mr. Pawan Sharma For Respondent(s) : Mr. Hansraj Kuldeep, AGC HON'BLE MR. JUSTICE ANAND SHARMA Order 22/08/2025

1. By way of filing the instant writ petition, the petitioner has challenged order dated 08.05.2007, allegedly received on

05.12.2008, whereby the representation submitted by the petitioner, for expunging the adverse remarks entered in Annual Confidential Record (for short, ‘ACR’) of the petitioner for the year 2002-03 & 2003-04, has been dismissed.

2. Petitioner has also prayed for quashing the communication orders dated 02.12.2006 and expunging the [2025:RJ-JP:33338] (2 of 10) [CW-13903/2008] adverse remarks entered in his ACRs for the aforesaid years, as well as for granting him consequential benefits of promotion from the date on which his junior has been granted promotion on the higher post of Executive Engineer (for short, 'X.En.').

3. Learned counsel appearing for the petitioner submits as under: (i) The petitioner was appointed after following proper recruitment process through R.P.S.C. on 27.07.1991 on the post of Assistant Engineer. His work and conduct was commendable and was appreciated by the higher authorities by issuing appreciation letters from time to time. (ii) The petitioner received two letters dated 02.12.2006, whereby it was communicated to him that certain adverse remarks have been entered in his ACRs for the year 2002-03 (for a period from (19.06.2002-31.03.2003) as well as for the year 2003-04 (01.04.2003-29.02.2004). (iii) After perusing the remarks, it emerged that the Reporting Officer in both the years has given excellent remarks and overall assessment of the Reporting Officer was outstanding. However, the Reviewing Officer has given certain remarks questioning the working of the petitioner, yet while making overall assessment, he has also entered it as 'Good'. (iv) Bare perusal of the alleged adverse remarks would reveal that although the Reviewing Authority was partially agreeing with the remarks given by the Reporting Officer, yet the observations made by the Reviewing Officer pointing out deficiency in the work of the petitioner, in the facts and [2025:RJ-JP:33338] (3 of 10) [CW-13903/2008] circumstances of the case, cannot be treated as adverse remarks, more so, when overall assessment made by the Reviewing Authority was 'Good' in both the years. (v) Although there is reference of issuing a notice under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal), Rules, 1958 yet the aforesaid notice was subsequently dropped and no penalty whatsoever was imposed upon the petitioner. He also submits that even otherwise giving reference of any disciplinary proceedings in ACR is contrary to the guidelines issued by the DOP for the purpose of filling ACR. (vi) As per the guidelines issued by the DOP for submitting and filing ACRs, timeline has been fixed for entering such remarks as well as for communicating the same. In the instant case, the alleged adverse remarks entered in the ACRs of the year 2002-03 & 2003-04 having communicated to him by way of letter dated

02.12.2006 and as such there is gross delay in communicating the said adverse remarks. (vii) Delayed communication of adverse remarks in itself frustrates the purpose of entering into remarks in ACR, which is otherwise reformative in nature and in the cases where the Reporting/Reviewing Authority finds that the work of the concerned officer was not proper, which resulted in entering into any remarks in his ACR, then such remarks ought to have been communicated immediately as per the guidelines of DOP but in has not been done so in the instant case. (viii) As per his service record, entries in ACRs for the preceding as well as following years of ACRs in question were [2025:RJ-JP:33338] (4 of 10) [CW-13903/2008] outstanding. Hence, it is beyond understanding that only for a particular period, all of a sudden work and conduct of the petitioner has been assessed as of lower rating than the ratings given preceding as well as in the subsequent years. (ix) Against the communication of adverse remarks, the petitioner submitted detailed representation before the Competent Authority, however, his representation has been rejected by unreasoned and non-speaking order, without taking into consideration his explanation submitted in the ACRs. (x) Entry of such adverse remarks, delayed communication and rejection of representation by cryptic order has caused grave prejudice and miscarriage of justice to the petitioner in the manner that although he was eligible for consideration for promotion on the high post of X.En. for the year 2008-09 yet only on account of such adverse remarks, he was deprived of his legitimate right of consideration in the said year, however, later on he was again considered and was promoted on the post of X.En. in the year 2013-14. Thus the aforesaid action of the respondents has caused grave and irreparable loss to the petitioner.

4. Learned counsel appearing for the respondents vehemently opposed the writ petition and stated that: (i) The remarks given by the Reporting Officers are required to be re-considered by the Reviewing Authority on the basis of record. In the instant case, Reviewing Authority Chief Executive Officer had an opportunity to reassess the entire material as well as working of the petitioner. [2025:RJ-JP:33338] (5 of 10) [CW-13903/2008] (ii) After due appreciation and meticulous examination of the record, remarks were given to the petitioner, which were also communicated to him vide letter dated 02.12.2006 in order to grant him opportunity to make a representation against such adverse entries. (iii) The representation submitted by the petitioner was considered by the Competent Authority, however, the petitioner utterly failed to point out any material illegality or irregularity in the procedure of communicating adverse remarks to the petitioner under these circumstances. The writ petition filed by the petitioner is totally misconceived and is liable to be rejected.

6. Heard and considered. It is not disputed that the adverse remarks entered in the year 2002-03 & 2003-04 have been communicated by the respondents to the petitioner on 02.12.2006 i.e., with a delay of 2 and 3 years. By now, it is settled proposition of law that the purpose and object of communicating the adverse remarks is frustrated, in case, such remarks are not communicated in time. The procedure for filling up the ACRs and assessment thereof is made with the sole object that the concerned employee/officer is apprised of his working assessment including any appreciation as well as shortcoming during his working. Delay in communication of any such remarks not only frustrates the sole purpose, but also deprives the concerned employee/officer of any opportunity to make reforms and improvement in his working.

7. It has also not been disputed by the respondents that for the very same period for which adverse remarks were [2025:RJ-JP:33338] (6 of 10) [CW-13903/2008] communicated to the petitioner, he was also awarded appreciation certificates even by the Collector of the District in which it has been mentioned that petitioner has fulfilled the targets in excellent manner and even he was recommended for giving award on Republic Day. Thus, at the one hand such appreciating letters have been given and on the other hand the Reviewing Authority had made remarks which are inconsistent with the earlier as well as subsequent ACRs.

8. It is also evident from the record that in earlier as well as in subsequent ACRs, the petitioner was possessing outstanding remarks, hence under the circumstances where in earlier years he was consistently getting outstanding remarks then, nothing has been made clear by the respondents as to what was the reason for not giving petitioner any opportunity for making a representation before lowering down his assessment in the year 2002-03 & 2003-

9. It is also settled that before down grading remarks in the ACR of any employee/officer, concerned Authority is bound to give a notice/letter to the petitioner revealing its intention to record such remarks. In this regard, learned counsel for the petitioner has relied upon the judgment fulfilled by this Court in the case of Jagdish Prasad Vs. The Chief Secretary & Ors. (S.B. Civil Writ Petition No.3444/2013) decided on

25.07.2023 in which after taking into consideration as many as 11 judgments delivered by Hon’ble Supreme Court as well as by this Court, following observations has been made. [2025:RJ-JP:33338] (7 of 10) [CW-13903/2008] "(7.) At the outset, it is made clear that this Court cannot moderate the appraisal and grading given to an officer/employee. While exercising power of judicial review, Court should not venture to assess and appraise on the grading of an employee. But if the Court finds that adverse entries made in the ACR or grading given to an employee are vitiated by extraneous consideration, the Court must interfere and quash them. It is essential to maintain the integrity and sanctity of the ACR of an employee and the legitimacy of the conclusions relating to his/her overall performance. (8.) The object of writing confidential reports or character of roll of a Government Servant is to afford an opportunity to the officer concerned to remove his deficiencies, if any, to inculcate discipline and to improve quality, excellence and efficiency of public service. The officer writing the confidential report should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility to inculcate devotion to duty, honesty and integrity to improve excellence of an individual officer. Thus, the action of the officer entrusted with the duty to write ACR must not be suspectable to the rise of arbitrariness. (9.) It is duty of the Reporting Officer and the Reviewing Officer to take care not only that in their assessment of overall performance of the subordinate officer but also they are not influenced by any personal interest, bias or malice. In other words, it must appear on the face of the record that in assessing overall performance and giving grade to an officer in his ACR, the authorities have acted fairly and without any bias. (10.) It is trite law that an officer entrusted with 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, on statement of facts, an overall assessment of the performance of the Officer. However, at the same time, the Reporting Officer before forming an opinion adverse to the Subordinate Officer should confront the officer with such information and then only the same may be made part of the report. Reference in this connection may be made to the following observation of the Hon'ble Apex Court in State of U.P. Vs. Yamuna Shanker Misra reported in 1997 (4) SCC 7:- “....The Officer entrusted with the duty to writ confidential reports, has a public responsibility and trust to write the [2025:RJ-JP:33338] (8 of 10) [CW-13903/2008] confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an over all assessment of the performance of the Subordinate officer. It should be founded upon facts or circumstances. Before forming an opinion to be adverse, the Reporting Officers writing confidential should share the information which is not a part of the record with the officer concerned, 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 being given such opportunity, the officer fails to perform the duty, correct his conduct or imporve 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.” (14.) This Court had an occasion to examine the instructions regarding Annual Performance Appraisal, 1976 in Richpal Singh Vs. State reported in 1992 (2) WLC 669. While following the principles laid down by Hon'ble Apex Court in State of Haryana VS. P.C. Wadhwa, reported in AIR 1987 SC 1201, this Court held that even if the administrative instructions issued by the Government are not having statutory force, they must be substantially complied with. The Government which had issued the instructions and the officers, who are bound to act in conformity with the administrative instructions and whose actions Government, must be held to be bound by these administrative instructions. The administrative authorities, which declare that their actions will be governed by certain standards must adhere to those standards. Arbitrary departure from such instructions will vitiate the action taken by such authorities. Faced with the problem of non adherence to such instructions especially in the context of the cases where positive reports given by the Reporting Officers are down graded or are recorded form by Reviewing/Accepting Officer, the Government has issued a circular on 3.4.1998, which is worth reproduction:- the negative the actions [2025:RJ-JP:33338] (9 of 10) [CW-13903/2008] "It has been observed that the APARS of the State Service Officers are sometimes downgraded by Reviewing/Accepting authority, without giving any reasons or justifications and it becomes difficult to properly defend such cases in Courts. The Supreme Court has also recently held that proper reasons must be recorded while down grading the APAR rating of a Reportee Officer. Accordingly it has been decided that the Reviewing/Accepting Accepting authorities should invariably record detailed reasons/justifications if APARs of the Reportee Officers are downgraded by them." (15.) Remarks in the APARS of a government servant play a significant role in his service career. While good remarks may help him gain timely promotion, adverse remarks may delay such promotion and in some cases, may even permanently end the chances of such promotion. It is true that the compliance of principles of natural justice in the sense of giving notice and providing opportunity of hearing cannot be insisted upon in the matter of recording of adverse remarks. At the same time, however, desirability of applying those principles at least in some semblance has always been impressed upon the executive by series of judicial pronouncements. This is based on sound principles of fairness and transparency in administrative action. Such a course is required to be adopted so as to rule out any possibility of arbitrariness and colourable exercise of power. The Government of Rajasthan has issued the APAR Instructions of 1976 with an avowed objective of adherence to these very principles of law. Guidelines contained in these instructions insist on objectivity of assessment rather than subjectivity of the officer making such assessment. They are intended to safeguard interest of the government servants so that no prejudice is caused to them by any possible bias on the part of the officer recording remarks in his APAR."

10. In the light of aforesaid discussion as well as the guidelines issued by the Hon’ble Supreme Court, the adverse remarks entered in ACR of the petitioner for the year 2002-03 & 2003-04, communicated vide letters dated 02.12.2006 are hereby expunged. Consequently, the petitioner is entitled for all [2025:RJ-JP:33338] (10 of 10) [CW-13903/2008] consequential benefits including reconsideration for his promotion by ignoring such adverse remarks. Such exercise shall be conducted by the respondents within a period of three months from the date of receipt of certified copy of this order.

11. Accordingly, the writ petition filed by the petitioner stands allowed.

12. Pending application(s), if any, stands disposed of. DAKSH/13 (ANAND SHARMA),J