JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for expunging adverse remarks recorded In the Annual Confidential Report (hereinafter called the 'ACR') of the petitioner for the years 1986-87 and 1992-93; for quashing the letter dated 10th August, 2005 issued by the High Court, rejecting his review representation dated 02.04.2005 and also for the benefits of ACP Scale - I with effect from 01.01.1996.
2. The facts and circumstances giving rise to this case are that the petitioner was selected as a Member of U.P. Nyayik Sewa and was posted as Munsif Magistrate on 08.01.1980. Adverse entries had been recorded in his ACR for the years 1985-86 and 1986-87. He filed two representations for expunging the same, however, they were rejected by the High Court vide order dated 19.03.1990 and the said order was communicated to him vide letter dated 17.04.1990. Petitioner filed two review representations, which were also rejected on 21.04.1991 and the order of rejection was communicated to him vide letter dated 26.04.1991. Again, he made second review representation on 2nd April, 2005 for quashing the said adverse remarks recorded in his ACR for the year 1986-87, which was rejected by this Court vide order dated 28.07.2005 and petitioner was accordingly informed. In the year 1986-87, enquiry had also been initiated against him wherein one of the charges, that he misbehaved using intemperate and offensive language with Shri S.M.L, Upadhyay and his brother-in-law Dr. V.N. Upadhyay at the residence of Shri B.D. Maurya, the then Additional District Judge, Etah on 27.02.1986 at about 20.30 hours, found proved but the other charges that the petitioner approached another Judicial Officer in a bail matter was not found to be proved beyond reasonable doubt. The High Court on consideration of the enquiry report imposed the punishment of warning upon the petitioner. The punishment was incorporated in his ACR and it was communicated to him by the High Court vide letter dated 02.12.1989. In 1992, again certain complaints were made against him. The then District Judge, Jhansi submitted a report on which the enquiry was initiated. The Inquiry Officer, after conclusion of the enquiry, submitted his report, which was not accepted by the High Court. The petitioner was served a show cause notice along with the reasons for not agreeing with the findings of the Inquiry Officer on charge No. 2. Petitioner submitted reply to the same and after considering his representation, the Court resolved to drop the proceedings. However, some adverse remarks were made in his ACR for the year 1992-93. He made a representation for expunging the same. The said representation has been rejected on his reminder representation, vide order dated 26.10.2005. It was communicated to the petitioner vide letter dated 17.11.2005. Hence the present petition.
3. Shri Durga Singh, learned Counsel for the petitioner has submitted that the adverse entries in respect of the year 1986-87 have become meaningless and are liable to be ignored in view of the fact that the petitioner had been promoted subsequent thereto as Additional Chief Judicial Magistrate and thereafter as Additional District Judge. The adverse entries for the year 1992-93 are liable to be quashed for the reason that it had been made for extraneous consideration without considering the functioning of the petitioner objectively. Once the petitioner has been exonerated in the enquiry, there was no occasion for retaining the adverse entries for the aforesaid year 1992-93. More so, the impugned adverse entries have been recorded in an arbitrary manner on mala fides by the then District Judge, Jhansi and the petitioner had been deprived of the ACP Scale - I and has subsequently been compulsorily retired because of these adverse entries recorded in his ACRs. Petitioner had not been awarded any other adverse entry during his entire service career. While rejecting the representation, reasons have not been recorded by the High Court. Thus, the petition deserves to be allowed.
4. On the other hand, Shri Amit Sthalekar, learned Counsel appearing for the High Court has vehemently opposed the writ petition contending that the adverse entries recorded in the years 1985-86 and 1986-87 were communicated to the petitioner and his representations and review representations had already been rejected vide orders dated 19.03.1990; 21.04.1991 and 02.04.2005. All the orders had been communicated to the petitioner. There was no occasion for him to make 3rd representation in respect of the same and the petition cannot be entertained so far as the expunging the adverse entries for the year 1986-87 are concerned. So far as the adverse entries for the year 1992-93 are concerned, the same were independent of the enquiry and his exoneration in the enquiry would not make the adverse entries liable to be expunged automatically. There is a very limited scope of judicial review in such matters and unless the Court finds that the adverse entry has been made arbitrarily or because of mala fide, the ACRs filled up by an officer who has an opportunity to examine his conduct and watch his performance, does not require any interference. It has further been contended that while rejecting the representation, there was no occasion for the High Court to record reasons. Petition is totally misconceived and is liable to be dismissed.
5. We have considered the submissions made by the learned Counsel for the parties and perused the record.
6. The issues involved herein are no more res-integra. In K.P. Tiwari v. State of Madhya Pradesh ; and in Kashi Nath Roy v. State of Bihar and Ors. AIR 1996 SC 3240, the Hon'ble Supreme Court observed that the superior courts should be reluctant to make any remark against a judicial officer. In such a situation, proper course would be to "make note of his conduct in the confidential record of his work and to use it on proper occasion."
7. In Chandra Gupta v. Secretary Government of India and Ors. (1995) SC 44; Sukhdeo v. Commissioner Amravati Division and Anr. ; and State Bank of India v. Kashinath Kher , while dealing with the issue of writing the A.C.Rs. the Apex Court observed that the superior officer, must show impartiality, objectivity and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the Government officer, lest the officer can be demoralized which would be deleterious to efficiency and efficacy of public servants.
8. In S. Ramchandra Raju v. State of Orissa 1994 Supp. (3) SCC 424 the Hon'ble Apex Court explained the scope, object and proper mode of writing the A.C.Rs. The Court held as under:
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 approaches or proclivity or predilections as to make objective assessment. It is needless to emphasize 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 or the above objectives if not directly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy....Therefore, writing the confidential reports objectively and constructively and communication thereof at the earlist would pave way for amend by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate employee officer should dedicate to it hard work and duty; assiduity in the discharge of the duty honesty with integrity in performance thereof which alone would earn his usefulness in relation to his service.
9. Similar view has been reiterated by the Hon'ble Apex Court in Ram Kumar v. State of Haryana ; S.N. Mukherjee v. Union of India and Ors. ; State Bank of Bikaner & Jaipur v. Prabhu Dayal Graver .
10. In State of U.P. v. Narendra Nath Sinha 2001 AIR SCW 3380, the Hon'ble Supreme Court held that while grading an officer/employee the reporting officer may record some reasons/justification in support of such an entry for the reason that when he is graded down by the review officer and accepting officer the authority may also give reasons for down grading him.
11. In State of U.P. v. Yamuna Shanker Misra and Anr. the Hon'ble Supreme Court dealt with issue and observed as under:
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 confidential 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 officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite 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.
12. In High Court of Judicature at Allahabad v. Sarnam Singh AIR 2000 SC 2150, the Hon'ble Apex Court held that the Confidential Reports are extremely important as it contain the observations and constitute important guidelines for assessing the work of a Judicial Officer. The object and purpose of recording the ACRs are two fold - namely, to assess the performance of the officer and also to give him an opportunity to improve himself.
13. In State of Gujarat and Anr. v. Suryakant Chunilal Shah (1999) 1 SCC 529, the Hon'ble Apex Court explained the object and purpose of filling up of ACRs observing as under:
The performance of a government servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a government servant is to look at his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "integrity". If this is missing, the whole bundle would disperse. A government servant has, therefore, to keep his belt tight.
Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.
14. In U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. , the Apex Court held that if the graded entry is going to 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 what is required by the authority recording confidential reports in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice.
15. In Union of India and Ors. v. E.G. Nambudiri and Ors. the Hon'ble Supreme Court considered the contention as to whether a representation against the adverse entry can be rejected by a non-speaking order. The Court held as under:
In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons.
16. In Syed T.A. Naqshbandi and Ors. v. State of Jammu and Kashmir and Ors. , the Hon'ble Apex Court considered the question of recording reasons where the matter is dealt by the Committees and the Full Court and held that the order cannot be interfered with merely on the ground that reasons have not been recorded. The Court observed as under:
The absence of reasons in the order rejecting the representations or the original resolution granting selection grade/super time scale, in the nature of proceedings themselves cannot be said to be an infirmity. The noting in the files dealing with those aspects would be sufficient record and the proceedings in the form of resolutions cannot be expected to be in the format of a judicial officer dealing with each and every claim.
As noticed (supra), on going through the materials on record and on a careful consideration of the procedure and the mechanism followed by the Committee constituted as well as the Full Court of the High Court, we are unable to persuade ourselves to agree to or sustain the stand of the petitioners in respect of their challenge to the impugned proceedings.
17. Scope of judicial review in such cases is very limited and the writ Court can interfere only in exceptional circumstances, for compelling reasons, where it comes to conclusion that the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material. (Vide Badri Nath v. Government of Tamil Nadu and Ors. ).
18. Thus, in view of the above, the law on this issue can be summarised that the superior Court should be reluctant to make any adverse remark against the. judicial officers. Their confidential reports should be filled up with all sincerity without any ill-will or affection on the basis of their performance. There must be some material on the basis of which the adverse remarks may be made by the Reporting Officer. The reviewing authority, if does not agree with the remarks made by the Reporting Officer, should record the reasoning before down grading the ACRs. There is very limited scope of judicial review of the confidential reports and the Court. Tribunal can interfere with the same only if it is satisfied that the same has been recorded arbitrarily, without any justification or assessment is proved to be mala fide. An order is not liable to be quashed merely on the ground that while deciding the representation, the Court did not record reasons.
19. The instant case requires to be examined in the light of the aforesaid settled legal propositions.
20. Straightaway, we would like to notice that the submissions made on behalf of the petitioner that earlier there had been no adverse entry against the petitioner is not factually correct. The material on record would indicate that the remarks recorded for the years 1981-82 and 1983-84 contain adverse remarks. Further the respondents, in para 10 of the counter affidavit, have quoted the ACR for the year 1985-86, which reads as under and was communicated vide Court's letter dated 29.11.1989:
Disposal 145.7 percent which is adequate. District Judge has reported that the officer lacks in administrative capacity and is not amenable to the advice of the District Judge. The District Judge has also adversely commented on the conduct of this officer. I will rate the merit of this officer as poor.
21. The petitioner has not denied specifically these facts.
22. Before proceeding further, we would like to record that the petitioner had not been promoted throughout his career in the cadre of Higher Judicial Service on substantive post and he merely held that post as a stop-gap arrangement under Rule 22 (1) of the U.P. Higher Judicial Service, 1975.
23. The gist of the ACR for the year 1986-87 is as under:
Disposal 128 percent which is adequate. For this period the District Judge has reported the merit of this officer as fair and has certified his integrity. The officer was, however, suspended from service pending enquiry into charges levelled against him regarding certain complaints at Etah. In these circumstances the integrity of the Officer can not be certified.
24. The gist of the ACR for the year 1992-93 is as under:
Integrity doubtful. He has been suspended by the Hon'ble Court. He is not fair and impartial in dealing with the public and Bar. There were complaints against him regarding passing interim orders on insufficient grounds. He decided no civil appeal. His control over his office v as very lax. Consequently, maintenance of files was most unsatisfactory. Several papers are missing. Some of them relate to the cases involving his integrity. Ahalmad alleges that Sri Azad kept them with himself. He is too clever to abide by any advice. Regarding bungling of bail order in his Court, he v as advised to file a complaint. But he avoided it On overall assessment he was rated as poor.
25. So far as the ACRs of 1986-87 are concerned, undoubtedly, the petitioner's representation and review representation had been rejected and the order of rejection was communicated to him vide letters dated 17.04.1990 and 26.04.1991 and 10.08.2005. A Constitution Bench the Hon'ble Apex Court in Rabindra Nath Bose and Ors. v. Union of India and Ors. , while considering the case of repeated representations, held as under:
He says that the representations were being received by the government all the time. But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay.
26. In Swatantar Singh v. State of Haryana and Ors. , while dealing with a similar case as is in hand, the Hon'ble Apex Court held as under:
The Appellate Authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.
27. In view of the above, it is not permissible for the petitioner to agitate that his 3rd representation in respect of the ACRs for 1986-87 has arbitrarily and illegally been rejected. Learned Counsel for the petitioner could not explain as under what circumstances the review representation on the same grounds could be entertained and once there had been rejection of his representation and review representation, there could be no justification for considering his 3rd representation on the similar grounds and that too at such a belated stage.
28. So far as the other submissions made on behalf of the petitioner that he stood promoted as an Additional Chief Judicial Magistrate and subsequently as Additional District Judge, adverse entries made against him, as well as the punishment in the earlier enquiry held in 1986-87 are to be treated as washed off, lack merit for the reason that in the present petition we are not concern about the effect of promotion even in the presence of such entries, but are concerned about the merit of the entries.
29. Moreover, merely because, petitioner was promoted the impugned entries cannot deemed to be washed off. Such entries are part of record of petitioner and can be considered subsequently for any purpose.
30. Even for passing an order of compulsory retirement, adverse remarks prior to his promotion and even uncommunicated adverse remarks can be taken into consideration, as held by the Hon'ble Apex Court in State of Punjab v. Gurdas Singh . While deciding the said case, the Hon'ble Apex Court had placed a very heavy reliance upon its earlier judgment in Union of India and Ors. v. V.P. Seth and Ors. , wherein it was held that any adverse entry prior to earning of promotion or crossing of Efficiency Bar or picking up of higher rank is not wiped out and can be taken into consideration while considering the overall performance of his whole tenure of his service, whether it is in public interest to retain him in service.
31. Similar view has been reiterated in State of U.P. and Ors. v. Ram Chandra Das ; I.K. Mishra v. Union of India and Ors. ; and State of U.P. v. Vijai Kumar Jain .
32. We do not find any force in the submissions made by the learned Counsel for the petitioner that the petitioner virtually stood exonerated, for the reason that the charge of intemperate behaviour was found proved and it may also be pertinent to mention here that in the earlier enquiry, the charge No. l, which related to approaching the another Judicial Officer in a bail matter was found not proved beyond reasonable doubt. This Court has taken a lenient view otherwise the Court could have disagreed with the findings recorded by the Inquiry Officer only on the said count. In domestic enquiry, only requirement is that the allegations against the delinquent should be proved by such evidence on the basis of which any reasonable person, considering it material and reasonably concludes that the allegation in the charge sheet stands corroborated. (Vide Nelson Motis v. Union of India and Ors. ; State of Karnataka and Anr. v. T. Venkataramanappa (1994) 6 SCC 455; Senior Superintendent of Post Office, Palhanamithitta and Ors. v. A. Gopalan ; State of Andhra Pradesh v. K. Allabakash ; Secretary, Ministry Of Home Affairs and Anr. v. Tahir Ali Khan Tyagi JT 2002 (Supp) 2 SC 520; and State of U.P. and Ors. v. Ramesh Chandra Mangalik ).
33. In Lalit Popli v. Canara Bank and Ors. , the Apex Court held that preponderance of probabilities and some material on record are necessary to arrive at a conclusion whether or not the delinquent officer had committed the misconduct. Standard of proof, the mode of enquiry and the Rules governing the enquiry and criminal trial are completely different.
34. In view of the above, we do not find any of the submissions made by learned Counsel for the petitioner in respect of the ACRs for the year 1986-87 to be sustainable.
35. In the ACR of 1992-93, the integrity of the petitioner has been found doubtful independent of the enquiry proceedings initiated against him. There had been serious complaints against him regarding passing of interim order on insufficient grounds; he had no control over his office; a large number of relevant documents related to the cases of his Court we found missing and the employees of his Court had alleged that the same papers had been retained by the officer himself; there had been bungling in the bail orders of his Court and in spite of the advice of the District Judge, he did hot file any complaint. He was assessed as a poor officer.
36. The enquiry had been initiated in 1992-93 on the complaint of one Shri Ram Sewak Kushth in respect of allowing the bail to the accused Rajaram Singh and Surendra Pal Singh for extraneous consideration and after passing the order, he had retained the bail order for some time. The Inquiry Officer had exonerated him of the charges but this Court did not accept the enquiry report and recorded the reasons for disagreeing with the same and issued him a show cause notice along with the said reasons. The reasons for disagreeing had been as under:
(1) The delinquent officer had entertained and granted the bail in a criminal cast involving the alleged offence under Section 307, ] PC, which was not within his competence.
(2) The bail application was disposed on the date it was filed without giving opportunity to the prosecution to have its say.
(3) It is not believable that the delinquent officer was not aware of the legal position that the bail application should not, ordinarily be disposed on the date of its presentation.
37. It is, therefore, apparent that the said enquiry had been initiated against the petitioner in respect of the charges entirely different from those which have been mentioned in the ACR of the petitioner for the year 1992-1993.
38. It needs to be pointed out that a Magistrate does not have competence to entertain a bail application in a non-bailable offence unless it falls within the ambit of Section 437(1) Cr.P.C. (Vide Surendra and Ors. v. State of U.P. and Ors. 1976 AWC 277; Kishore Kumar and Ors. v. State of U.P. Anr. 1985 AU 1238; and Vijai Kumar and Ors. v. State of U.P. and Ors. 1989 AWC 569).
39. In Gurcharan Singh and Ors. v. State (Delhi Administration) and Ors. AIR 1978 SC 179; and Prahlad Singh Bhati v. NCT Delhi and Anr. , the Hon'ble Apex Court has categorically held that in cases punishable with death or life imprisonment, the Magistrate cannot grant bail unless recourse is taken to proviso to Sub-section (1) of Section 437, Cr.P.C.
40. The case dealt by the petitioner admittedly did not fall within the ambit of proviso to Section 437(1) Cr.P.C. Admittedly, petitioner exceeded his jurisdiction though it is another aspect of the matter that the High Court has dealt with the petitioner very leniently but definitely this aspect is not going to tilt the balance in favour of the petitioner to grant an equitable relief in discretionary writ jurisdiction. The facts of the case speak in volumes as how the petitioner had proceeded in a bail matter having no jurisdiction, therefore, the submissions made by Shri Durga Singh, learned Counsel for the petitioner in this regard are preposterous and, thus, liable to be rejected. However, it is another aspect of the matter that the High Court had dropped the enquiry against the petitioner at the subsequent stage.
41. It has been submitted by Shri Durga Singh, learned Counsel for the petitioner that the then District Judge was biased and prejudiced and, therefore, he recorded the ACRs with malice. The allegations of mala fide cannot be dealt with unless the allegations of mala fide are precise and made specifically and the person against whom allegations are made, is impleaded as a party. (Vide State of Bihar and Anr. v. P.P. Sharma and Anr. AIR 1992 SC 1260; Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr. AIR 1996 SC 326; All India State Bank Officers Federation and Ors. v. Union of India and Ors. ; I.K. Mishra v. Union of India and Ors. and Federation of Rly. Officers Association v. Union of India and Ors. ).
42. As none of the persons has been impleaded by name and allegations are not even specific, such averments are not worth consideration.
43. In view of the above, petition lacks merit and is accordingly dismissed. There shall be no order as to costs.