JUDGMENT
Prasad, J.
(1). The present writ petition has been filed by the petitioner against an adverse entry made for the year 1996 in the Annual Confidential Report (referred to hereinafter as ‘A.C.R.’) of the petitioner. A representation was filed by the petitioner against such adverse entry and the same has been rejected on the administrative side by the High Court. While the petitioner preferred the representation, he claims that he had requested for grant of an opportunity of personal hearing before the Committee of Hon’ble Judges constituted to consider the representation of the petitioner against the adverse entry communicated to the petitioner for the year 1996. No opportunity was afforded to the petitioner as prayed for and the petitioner and the petitioner received a communication Annex. P.4 from the Registrar General informing him that his representation has been rejected.
(2). The petitioner claims in the representation that the communication Annex. P.4 did not disclose any reasons leading to the rejection of the representation of the petitioner. In this petition the petitioner has claimed that remarks recorded against the petitioner are not bona fide remarks by the respondent No. 2.
(3). The petitioner has claimed that he has a feeling in retrospect that respondent No. 2 expected an exclusive and high degree of attention towards him and the petitioner could not confirm up to his subjectivity perceived expectations and that has resulted in recording of adverse entry against the petitioner. The petitioner has left a question mark in his representation wherein he claims that he wonders if there are other reasons also which may have annoyed respondent No. 2 and persuaded him to record adverse remarks against the petitioner.
(4). The petitioner in his representation has given detailed resume of the facts leading to the complaints against him and has joined the issue on the factual aspect of the recording of the adverse entry. He has claimed that the respondent No.2 in his report of preliminary enquiry has chosen to formulate incorrect report. Such report has been prepared, with malice in mind. The petitioner claims that the Hon’ble High Court on the allegations did not consider it fit to initiate a departmental enquiry on such allegations. Dealing with the aspect of holding enquiry by the respondent No.2 the petitioner claims that he took an unheard of steps of openly inviting complaints against the petitioner. It has also been claimed in the petition that such letters were dispatched to hardened criminals in jail and were also openly circulated in the court premises. This kind of open invitation for accusation, lowers done the dignity of the Judicial Officers in the mind of the public at large. This suggests deep malice in the mind of respondent No. 2 as these remarks are not only vague but also baseless and unfounded. It has caused great mental agony to the petitioner. The petitioner has justified that the allegations of not taking pains in relation to the disposal of the old cases, are not based on correct appreciation of the factual matrix in this relation. If any old cases have remained pending then they were beyond the control of the petitioner.
(5). The allegation regarding capacity to handle files systematically and to control the proceedings in the court too is not found on correct appreciation of the working of the petitioner. In the aforesaid circumstances the petitioner has claimed that the order of the Hon’ble High Court made on the administrative side vide Annex. A.4 is ex facie illegal inasmuch as it is not a speaking order. None of the contentions raised by the petitioner in his representation have been even noted muchless considered and have been adjudicated upon and, therefore, the petitioner claims that the representation of the petitioner has been rejected without there being any reason or order on record and thus, the order Annex. P.4 infringes the principles of natural justice.
(6). The petitioner for preparing his defence has requested for issuance of copies of certain documents. The same have not been issued to the petitioner. Such non-issuance has caused a serious prejudice to the petitioner. This has resulted into a situation where the petitioner has not been able to make submissions in regard to the material on the basis of which the ultimale decision has been taken against him to rejecl his detailed representation.
(7). The petitioner claims that the adverse entry against the petitioner is vague to the extreme. He also claims that before making the adverse entry at no stage the petitioner was apprised of the feelings of the reporting officer. Such expression of the feelings, prior to recording an adverse entry, is always useful. Purpose of bringing to the notice of the employee adversity going against him is to permit him one opportunity to correct himself. The petitioner has further claimed that there had not been a single adverse entry made against him either prior to the impugned adverse entry or later to that. The petitioner claims that it is almost impossible that a person who has been good and honest throughout will suddenly become so bad on all the counts as projected by the respondent No. 2. The adverse entry can safely be called just an island in the entire career of the petitioner. The petitioner has said that the adverse entry has been made by the reporting officer with the intention of spoiling the career of the petitioner and to see that the petitioner is not promoted to the next post for which his promotion was due since 1995.
(8). The respondents have joined the issue and the respondent No. 1 in its reply has claimed that the petitioner has not come up with correct narration of facts. He has been guilly of committing judicial indiscipline by giving probation in a case under Food Adulteration Act, which is impermissible. It has been claimed by the respondent No. 1 in its reply that it is wrong to say that no adverse entry was conveyed to the petitioner except the entry of 1996. The ACR of 1993 was adverse and communicated to the petitioner. Thus, it cannot be said that the adverse entry of 1996 was an island in itself. It may however be mentioned that such adverse remarks were expunged after considering the representation of the petitioner filed in that relation. Such action shows that the representations against the adverse entries are considered with objectivity by the answering respondent.
(9). This has been claimed by the answering respondent that all the lapses were brought to the notice of the petitioner but he failed to come up to the expectation. This has been asserted on behalf of the answering respondent that granting of an opportunity of submission of representation is sufficient. No personal hearing is necessary when the case of an officer is considered against adverse entry. The representation was rejected after consideration. Such consideration was made after receiving the comments of the reporting officer and in the face of the representation of the petitioner. The Committee was headed by Hon’ble the Chief Justice. The report of the Committee was unanimous.
(10). The answering respondent No. 1 has claimed that the allegations of bias and prejudiceness against the reporting officer are baseless. The reporting officer has denied such allegations in his comments. The same were found devoid of merit and, therefore, rejected by the Committee. The allegations of bias against the respondent No. 2 reporting officer were imaginary. The allegations have been denied by the reporting officer.
(11). The complaints which were invited by the reporting officer were invited by notice in the general nature. When the notice was issued to the concerned persons at large if the accused in Jail have taken advantage of the opportunity then it cannot be said that such invitation was made to the accused persons personally and exclusively. It was a general notice. The claim of the petitioner that his lapses were not brought to
his notice is factually incorrect and the reporting officer in his comments has clearly stated that he has brought it to the notice of the petitioner- But he did not Improve his image. The remarks given by the reporting officer cannot be said to be baseless because he has appended a note mentioning the grounds of withholding the integrity certificate.
(12). A reply has also been filed by the answering respondent No. 2. He has denied the allegations of mala fides and has asserted that they are clearly an after thought. Such allegations were not made by the petitioner in his representation dated 6.4.1998 (Annex.P.2). The answering respondent No. 2 has also denied that he has invited complaints from the accused persons is also wrong. His case is that as a Controlling Officer he was to make an enquiry and in the process of enquiry he called comments of all concerned and In that process If the accused persons have filed their complaints then they cannot be said to be persuaded to file complaints by the answering respondent No. 2. It was not only the petitioner alone but some other officers posted in Pratapgarh Judgeship had similar adverse entries against them. Therefore, it is wrong to claim that it was only petitioner who was singled out for such treatment because there were other officers who have been given suitable remarks in their ACRs.
(13). In his rejoinder, the petitioner has reiterated that the respondent No. 2 had bias against him otherwise he would not have asked for his explanation on the complaints of hardened criminals like Balram Joshi and Harinarayan Joshi.
(14). Learned counsel for the petitioner has submitted supporting his writ petition that a single solitary adverse entry cannot stand the judicial scrutiny. If an officer has been good throughout, before and after the adverse entry then justification of a single adverse entry has to be made out seriously. In the instant case, the petitioner was accorded promotion on the basis of seniority-cum-merit as Additional Chief Judicial Magistrate and he has been granted selection scale on the basis of merit. These two events show that the petitioner has been favoured with promotion and such event is only possible if the career of the petitioner is good enough to warrant them. It the whole career can it be said that the petitioner became so bad only in the year 1996 that he has warranted an adverse entry.
(15). It has been further asserted on behalf of the petitioner that the adverse entry is based on two decisions of two different proceedings u/S. 440 Cr.P.C. According to the petitioner this is at best a case of two judicial opinions possible in the given circumstances of the case. To infer dishonesty from these divergence is a proposition which cannot be said to be justified. The petitioner has emphasised that the petitioner was never apprised of his deficiency prior to the recording of the adverse entry though the fact has been controverted by the respondent No. 2. But no evidence has been produced whatsoever in this respect.
(16). It has been claimed on behalf of the petitioner that the respondent No. 2 had so deep rooted malice towards the petitioner that he was out and out to some how defame or bring the petitioner’s reputation lower down in the eye of public at large. Therefore, he addressed letters to the accused and circulated the one in the court premises. The manner in which the enquiry was made public against the petitioner was wholly subversive of the judicial decoram.
(17). The petitioner has joined the issue on not furnishing the facts regarding law disposal of cases. The remarks in this regard by the reporting officer are said to be not based on factual matrix. The petitioner contends that in the year 1982 he entered into the service and he was promoted to the post of Additional Chief Judicial Magistrate on the basis of merit cum seniority in May 1993 and then selection grade was granted to him in the year 1999. The adverse entry was given in the year 1996 and after 1997 there had been no adverse entry so it is amply proved that only one solitary entry i.e. the present one is being read against the petitioner. The preliminary enquiry held by the Court in relation to the complaint against the petitioner was filed by the Court by
observing that looking to the facts and circumstances the complaint of Shri Balram was filed.” Such complaint was not voluntarily made by Balram but the same was invited by the respondent No. 2 by mala fide action as the letters were sent to Balram while he was in Jail. Had there been any substance in the allegations then there would have been a regular enquiry in the matter. Keeping in view of the animus in the mind of the respondent No. 2 the petitioner was forced to seek the views of Bar President for the year 1996 and 1997. Such certificates have been produced as Annex. 12 and 13 and this clearly establishes that the remarks of the reporting officer are not correct. The remarks made by the respondent No. 2 are without any sense of responsibility and there is no material to support this. The petitioner has clarified that there there is no direct evidence to prove the mala fides. It has been averred that from the attending facts, if a judicial officer of considerable experience, holding a high position as that of a District Judge, tells a lie and that too before this Court then certainly that has a story to tell. This may be viewed in the light of the fact that four hardened criminals have been addressed a letter by the District Judge. Such conduct of the respondent No. 2 clearly shows that he had mala fides in his mind against the petitioner.
(18). It has been claimed by the petitioner that certain persons suffer from some sort of superiority complex and feel that every body except them is dishonest. Actually such persons suffer from an honesty phobia and they see things wrong every where. This results in making such persons saddisl, who are out to damaging career of large number of persons. Such persons also face a lot many legal proceedings.
(19). Learned counsel for the petitioner has emphasised that the order rejecting the representation is not a speaking one and that being not a speaking order, the representation can be said to have not been decided by objective consideration. The order is in clear violation of the principles of natural justice.
(20). Counsel for the respondents have submitted that the petitioner has blown out of proportion the allegations of mala fides against the respondent No. 2. There had been no specific grievance mentioned or delineated anywhere in the writ petition or in the course of arguments which is good enough to say that the allegations were actuated by mala fides. Further the ACR for the year 1996 was entered by the reporting officer and Hon’ble the Chief Justice who is the authority to review the entries made by the reporting officer has confirmed It. Therefore, there was a confirmation of the opinion of the reporting officer. The opinion of the reporting officer got merged in the opinion of the reviewing officer i.e. Hon’ble the then Chief Justice and, therefore, the remarks are not singularly attributed to the reporting officer but are attributable to Hon’ble the Chief Justice of this Court who had endorsed such remarks.
(21). The adverse entry against the petitioner became the subject matter of review by another Committee of the Judges headed by then Chief Justice and after examining the remarks in the ACR made by the respondents No. 2 and confirmed by the then Chief Justice the Committee of Judges considered the merit of the report in the light of the representation of the petitioner and the report of the reporting officer respondent No. 2 and rejected the representation and confirmed the entry. Though a very detailed order has not been recorded while rejecting the representation but as and when such opinions are confirmed a detailed reasoned order is not necessary. Detailed reasons are only necessary when a disagreement is recorded. Thus, the stand of the petilioner that the entry has not been considered in right perspective is incorrect.
(22). The allegations of mala fides against the respondent No. 2 are based on very shaky assumptions of the petitioner. The same reporting officer has an occasion of assessing the petitioner on another occasion where he has not recorded adverse against him. Had he in him deep rooted hiden malice in his mind, he would have repeated the same but since the petitioner at the relevant period committed acts of judicial indiscipline and was reported to have indulged in such activities which were responsible for drawing adverse entry he recorded the same. There being no evidence of malice put forward by the petitioner, it can be said that the petitioner has only
apprehended or inferred mala fide attitude of the respondent No. 2 without there being any malice which has been denied by the respondent No. 2. In this view of the matter, no reasonable inference is possible against the respondent No. 2 that he had any mala fides against the petitioner.
(23). The petitioner in his writ petition and the written submissions has claimed that there were no adverse entries against the petitioner except the one communicated to him for the year 1996. This stand of the petitioner is per se false. There was another adverse entry against the petitioner recorded in the year 1993. It is a different aspect that such adverse entry was expunged after representation of the petitioner was accepted. Such acceptance of the representation of the petitioner shows that the representations are considered objectively by the respondents. Apart from another adverse entry recorded in his ACR the petitioner has admitted to have granted probation in a case, in ignorance of law. For that his explanation has been sought for and he has accepted to have faltered on that count. In his petition, therefore, the petitioner has made a wrong averment that there is no adverse entry except the one in question. Even after the filing of the reply and rejoinder the petitioner has not corrected himself and even during the argument has stuck to the position that there was only one adverse entry recorded against the petitioner ever. Thus, the petitioner is in the habit of taking false stand.
(24). The petitioner has blown out of proportion the fact of circulation of notice in the court and seeking opinion against the petitioner. The reporting officer has to have some material and one way of having material is to hold an enquiry. If for any enquiry a circulation is made then nothing can be seen in circulating that notice. The fact of not holding a regular enquiry against the petitioner cannot mean that the petitioner was not on wrong foot. On administrative side the answering respondents feel some times not justifiable to hold an enquiry bill holding of enquiry is for punishment and recording of ACR is for appraisal and thus, nothing substantial can be seen in these allegations of the petitioner.
(25). Learned counsel for the petitioner has placed reliance on a Supreme Court decision rendered in High Court of Judicature at Allahabad through Registrar vs. Sarnam Singh and Another (1), and has drawn attention of this Court on the following observations made in the aforesaid case:
“These are extremely important observations and constitute important guidelines for assessing the work of a Judicial Officer.” ……
These observations also indicate the attitude with which the Inspecting Judge should objectively consider the work and conduct of the Judicial Officer who sometimes have to work under difficult and trying circumstances.”
(26). In High Court of Punjab and Haryana through R.G. vs. Ishwar Chand Jain and Another etc. (2), the Hon’ble Supreme Court observed as under:
“… Since Judges are human beings and also provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the remedied working of the Subordinate Court, Inspection should act as a catalyst in inspiring subordinate Judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the Courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of Courts at grass root level. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and become part of the Annual Confidential Reports and are foundations on which the career of a judicial officer is made or marred. Inspection of Subordinate Court is thus of vital importance…”
(27). Learned counsel has placed reliance on the following observations of the Hon’ble Supreme Court made in Yoginath D. Bagde vs. Stale of Maharashtra and another (3).
“The Presiding Officers of the court can not act as fugitives. They have also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but that have to face them boldly without deviating from the right path. They are not expected to be overawed by such litigants or fall to their evil designs.”
(28). Learned counsel has also relied upon a decision of the Supreme Court rendered in Ishwar Chand Jain vs. High Court of Punjab and Haryana and Another (4), wherein the Hon’ble Supreme Court observed as under:
“An honest and strict judicial officer is likely to have adversaries in the moffussil courts; if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected; and it would be difficult for him to discharge his duties honestly and independently. It is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill conceived or motivated com-plaints made by the unscrupulous lawyers and litigants.”
(29). Learned counsel for the petitioner further relied upon the following observations of their Lordships of the Supreme Court made in the matter of: ‘K’ A JUDICIAL OFFICER, IN RE (5):
“A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. II should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it, within four- corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of a Judge.”
(30). It was further observed in para 15 of the judgment as under:-
“…. the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone, Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a Subordinate Judge may, sitting on administrative side and apprised of over-all meritorious performance of the Subordinate Judge, may irretrievably regret his having made those observations on judicial side, the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided
the case against him. This is subversive of judicial authority of the deciding Judge.”
(31). It was further said in the aforesaid judgment;
“…. the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralizing effect not only on him but also
on his colleagues.”
(32). In State of U.P. vs. Yamuna Shanker Mishra and another S. Raju’s case has been referred to and it has been observed as under:
“…. wriling 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 prospecls of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The later should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing [he character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period for assessment, the prospect and career of the subordinate officer would be put to great jeopardy. The reporting 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 to the discharge of their duties and make it impossible for the superior or controlling officers to extract legitimate work from them. The wriling 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 officers or to improve the efficiency in service.”
(33). The Court has taken notice of State Bank of India and Others vs. Kashinalh Kher and Others (6); U.P. Jal Nigam and Others vs. Prabhal Chandra Jain and Others (7) and also Sukhdeo vs. Commissioner Amravati Division, Amravati and Another (8), and it is then said in para 7:
“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 51-A(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 employee strives to improve excellence and entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, Fairly and dispassionately which 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 facts and circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before framing 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 con-
fronted 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 an opportunity, the officer fails to perform the duly, 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 redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity honesty, efficiency and devotion.”
(34). In Sikhdeo vs. Commissioner Amrawati Division (supra), the Hon’ble Supreme Court observed as under;
“It would be salutory that the controlling officer 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.”
(35). It has been further observed as under:
“So far as post-1972 remarks were concerned, they were mostly based on the from (sic Former) charges dropped by the Governor in 1977 later on. Thai happened nycg before the meeting of the Committee on 30.8.1979. Their expunction was unduly delayed till after the Committee met. Wednesbury principles are therefore directly attracted.”
(36). Learned counsel for the petitioner has also placed reliance on S. Ramchandra Raju vs. State of Orissa (9), wherein it has been observed 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 prejudices or proclivity or predilections and to make objective assessment, it is needless to emphasise that the career prospect 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 concerned officer/employee 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 being put to great jeopardy.”
(37). Learned counsel for the petitioner has also placed reliance on the decision of the Hon’ble Apex Court in the matter of Badrinath vs. Government of Tamil Nadu and Others (10) and Delhi Judicial Service Association Tis Hazari Court, Delhi vs. State of Gujarat and Others (II).
(38). A Division Bench of this Court in Kishori Lal Mathur vs. The State of Rajasthan (12), wherein it has been observed as under:-
“It is settled law that when the competent authority agrees with the report of the enquiry officer or other authority, we are of the considered opinion that there is no need to record the reasons. (Vide Ramkumar vs. Slate of Haryana (AIR 1987 SC 2043); S.N. Mukherjee vs. Union of India and Ors. (1990 (4) SCC 594); Somdutt Dulta vs. Union of India & Ors. (AIR 1989 SC 414); and Slate Bank of Bikaner & Jaipur vs. Prabhu Dayal Grover (1995 (6) SCC 279). Thus, we find no force in this submission also.”
(39). In the instant case also, the competent authority i.e. Hon’ble the Chief Justice has rejected the representalion of the petitioner concurring with the Committee of Judges and the comments of the reporting officer who had given detailed explanation for turning down the said representation as is evident from the letter of the Registrar General intimating the rejection of the representation of the petitioner.
(40). Learned counsel for the respondents has relied upon a decision of the Hon’ble Supreme Court rendered in Union of India and Others vs. E.G. Nambudiri (13), on the basis he has contended that the rejection of the representation is to be judged from all the circumstances. Absence of reasons does not call for any interference. It has been observed as under in the aforesaid case:-
“There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. 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 reasons. 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. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action.”
(41). Learned counsel for the respondents has also relied upon a Supreme Court decision rendered in Chandra Gupta, I.F.S. vs. Secretary, Govt. of India, Ministry of Environment & Forests and Others (14), and has staled that in the very nature the confidential entries are not known when they are made. Therefore, there was no
question of any prior information being given to the petitioner about the intention of the reporting officer to record adverse entry. It has been observed as under:-
“A careful reading of the All India Services (Confidential Rolls) Rules, 1970 thereinafter referred to as the Confidential Rolls Rules) clearly establishes that what is underscored in these Rules is confidentiality. Even the officer concerned against whom the entries are made has hardly any chance of knowing about the entries. Of course, it is a different mailer if an adverse entry is made. Prior to making such an entry the officer concerned could have no knowledge. It is only after the entry is made an opportunity is provided to him to make a representation. This is evident from Rule 9 of the Confidential Rolls Rules.”
(42). Learned counsel has further expressed that in the instant case the reporting officer has clearly explained that he had informed the petitioner to improve his conduct.
(43). Learned counsel for the respondent has relief upon a decision of the Hon’ble Supreme Court rendered in R.L. Bulail vs. Union of India and Others (15), wherein it has been observed as under:
“(i) The rules regarding preparation and maintenance of confidential reports are by way of departmental instructions and are neither statutory rules nor rules made under Article 309.
(ii) The rules do not provide for nor require an opportunity to be heard before any adverse entry is made. Making of an adverse entry is an equivalent to imposition of a penalty which would necessitate and enquiry or the giving of a reasonable opportunity of being heard to
the concerned Government servant.
(iii) Under Rule 11 of the Central Services Rules, 1955, although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not constitute a penalty. And no question of breach of the principles of natural justice arises in such a situation.”
(44). And on the basis of the law laid down by the Hon’ble Supreme Court has contended that before making an adverse entry no opportunity was required to be given to the petitioner and the question of mala fides as alleged by the petitioner has not been made out.
(45). We have considered the rival submissions and have perused the record.
(46). The first and for most question which is to be seen in the present writ petition is the claim of the petitioner that the adverse entry in question was the only adverse entry made against the petitioner. Neither there was any prior entry nor any entry was recorded afterwards.
(47). We have perused the recorded which was submitted by the respondents for perusal of the court and from the record we find that prior to the adverse entry in question there was an adverse entry recorded against the petitioner in the year 1993. This entry though expunged on the representation of the petitioner but this falsifies the stand of the petitioner that no adverse entry was ever recorded prior to the adverse entry in question. Therefore, the petitioner’s stand that adverse entry in question is an entry in isolation and is only an island suffers from the vice of mistatement.
(48). From the record we find that an explanation of the petitioner has been placed on record for the reason that the petitioner has granted probation in a case of Prevention of Food Adulteration Act where there is a statutory prohibition on grant of prohibition. The fault committed by the petitioner though has not been recorded as an
adverse entry nonetheless an explanation has been called from the petitioner for the wrong committed and his statement has been placed on record in his Annual Confidential Report,
(49). It the year 1994 this has been placed on record of his ACR that late delivery of decisions was found to be unsatisfactory by this Court and a communication was sent to the Officer in this regard. In 1984 his two decisions were found to be below standard. This entry has also been recorded in his ACR. In the year 1992 it has been recorded that the officer was not found sitting in the court during the working hours on 3.4.1992. In the face of aforesaid it cannot be said that there had been a very clean record of the petitioner throughout and his claim that the entry in question is salutory instance is not sustainable.
(50). The petitioner has claimed in his writ petition that the adverse entry in question has been recorded by the reporting officer respondent No. 2 by mala fide intention. The allegations in the writ petition and writing in the written submissions read as under;-
“The allegations in the writ petition are :-
2. That Respondent No. 2 came on posting at Udaipur during 84-85 as Additional District & Sessions Judge, where the petitioner was also posted as Judicial Magistrate since 1982. The petitioner, in retrospect has a feeling, that this Respondent expected an exclusive and high degree of attention towards him and petitioner could no! confirm up to his subjectively perceived expectations and it appears that he carried this qua the petitioner, since then till opportunity to pen down this all important entry against the petitioner arrived.”
“The allegations in the written submissions are :-
15. So far as the malafides are concerned, direct, evidence to prove malafides is hardly possible to get. If has to be found from the attending facts. If a judicial officer of considerable experience holding as high a position as that of a District Judge tells a lie and that, too before this Court, then certainly that has a story to tell. Firstly he tells something which is not correct. Secondly he writes to four hardened criminals a letter like this to prove them to make a complaint which was not made earlier when first complaint was made. He then openly circulates this letter in court premises. He does not even reckon the situation that if the allegation made in second complaint were true, that would have been part of first complaint. From this irresistible conclusion is that the hardened criminal who suffered punishment at hands of petitioner were made to make complaint as once he felt that an opportunity has come to his way he will surely make concocted new story. As for Respondent No. 2 he knew that those who felt aggrieved on account of being punished will surely respond and make a complaint. Hence all this was done and letter was sent to Jail where so many under-trials jail officers have access to this letter. To say the least this letter is hardly in consonance with a bonafide judicial endeavour.”
” 18. It is not an unknown phenomena that certain persons suffer from some sort of superiority complex and feel that every body except them is dishonest. Actually such persons suffer from an honesty phobia and they see things wrong every where and that results in such person make such persons saddist who are out to damaging career of large number of persons and such persons also face a lot many legal proceedings.”
(51). In our opinion, they fall short of establishing any clear mala fides againsl the respondent No. 2. At best whatever has been contended and expressed In the pleadings and the written submissions show an apprehensive attitude of me petitioner which appears to be a result of his pathological attitude towards his senior officer. The law regarding mala fides is very strict and certain. It has been held by the Hon’ble Supreme Court in the following decisions which reads as under:-
(52). In E.P. Royappa vs. State of Tamil Nadu (16), the Hon’ble Supreme Court observed as under:-
“Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it…. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office – which has a high responsibility in the administration.”
(53). In M. Shankarnarayana vs. State of Karnataka (17), the Hon’ble Supreme Court observed as under:-
“The court may “draw a reasonable inference of malafide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture.”
(54). If the law regarding mala fides is applied as has been stated by the Hon’ble Supreme Court in the aforesaid two decisions then we find that no case of mala fide is made out against the respondent No. 2. In these circumstances, it cannot be said that the petitioner has succeeded in establishing that the respondent No. 2 had mala fide intention to record adverse entry against the petitioner.
(55). The petitioner has further claimed that the reporting officer respondent No. 2 has invited complaints in writing from hardened criminals. Such course lowers down the dignity of the judicial officer who had to work in adverse circumstances.
(56). In this back- ground it can also be seen when there are allegations against a judicial officer involving his integrity there has to a method to enquire the same. The reporting officer who is a superior officer can adopt some method for that. Holding enquiry is one of them. In an enquiry he has to ask all those who are in possession of any evidence to submit the same, After assessment of the same he may objectively make his recommendations. Thus, this Court feels that the petitioner has tried to blow out of proportion the incident of circulation of the notice for seeking information. Reliance placed by the petitioner on the decision of the Hon’ble Supreme Court regarding recording of ACRs is distinguishable on facts, Sarnam Singh (supra) and Ishwar Chand (supra) relate to inspection which is an annual affair whereas the reporting officer constantly observes the subordinates throughout the year.
(57). Further such observations are objective and in the absence of proved mala fides deserves to be sustained. More specially in the back-ground when the remarks of the reporting officer were sustained by the Hon’ble the Chief Justice in review. Nothing has been alleged against the reviewing officer and the remarks of the reporting officer got merged in the confirmation of the reviewing officer. That being the position, the remarks having been confirmed by Hon’ble the Chief Justice on the administrative side are not liable to be disturbed on the count on which the petitioner has sought it to be discredited.
(58). The petitioner had laid too much stress on the fad that the representation has been rejected by a non-speaking order.
(59). We have perused the record. Non recording of the reasons in a case where the confirmation earlier is made is not a lacuna of the nature which the petitioner has sought to make out. It has been the law laid down by this Court as per the observations
made by this Court in Kishorilal Mathur’s case (supra). This Court in this case has considered the question of prior information to the officer before writing adverse entry. It has been observed by this Court as under:-
“14. The aforesaid observations made by the Hon’ble Supreme Court run counter to the law laid down by the Apex Court in E.G. Nam-budiri’s case (supra), which has been approved by a larger bench of the Hon’ble Supreme Court in Chandra Gupta and Ors. vs. Union of India and Ors. 1995 (1) SCC 23. The Court has emphasized very much on the confidentiality of the record as it has been observed that if it is communicated even to the officer/employee concerned, it will lose its confidentiality. The concerned employee has a right to make representation after the adverse entry is communicated to him. The said judgment in Chandra Gupta’s case has been followed by a Division Bench of this Court in the High Court of Judicature for Rajasthan vs. Tek Chand “D.B. Civil Special Appeal (Writ) No. 371 of 1994” decided on 24.1.96 recording the following in conclusions:
“A confidential report is intended to be a general assessment of work performance and integrity of the officer concerned.
These reports have also an element of Secrecy and only to be disclosed to the officer for making suitable representations….. The adverse entries are not required to mention specific instances and omission of such instances would not invalidate the entry.– If the reporting officer is required to refer to all the material and sources of information of forming an opinion about the officer, then concept of confidentiality is given a good bye… this court while sitting under Article 226 is not sitting as a court of appeal but it has to examine whether the adverse remark is the result of victimisation or arbitrariness on the part of the reporting officer… the order rejecting the representation need not be a reasoned one nor any opportunity is to be given to the officer concerned before giving the entries.”
15. In State of UP. vs. Ram Chandra Trivedi (AIR 1976 SC 2547), the Hon’ble Supreme Court has held as under:-
“It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India vs. K.S. Subramaniam (Civil Appeal No. 212 of 1975 decided on July 30, 1976) is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.”
“16. It is evident from the judgment in Yamuna Shanker Misra’s case (supra) that the earlier judgments of the Apex Court have not been considered. Thus, we follow the judgment in E.G. Nambudiri’s case (supra) approved and followed by the larger bench of the Hon’ble Apex Court in Chandra Gupta’s case (supra). We are in full agreement with the observations made by the Division Bench of this Court in Tekchand’s case (supra) and find no substance in this contention also.”
(60). Thus, from the above it will be seen that the emphasise of the petitioner for prior information is misplaced. Further technically the respondent No. 2 has submitted
that he had informed the petitioner about his lapses. In this back-ground nothing more can be seen in this ground raised by the petitioner.
(61). The petitioner has placed on record certain certificate procured by him from the President of the Bar. On the one hand he has taken exception to the fact of the respondent No. 2 circulating notice for giving evidence and he himself is seeking opinion about his functioning from the lawyers. The practice of Judicial Officers seeking such certificate cannot be seen to be a healthy practice. This kind of procurement of certificate has so many hazards and, thus, this Court feels that such kind of practice should not be encouraged for that reason. We refuse to address ourselves on this question.
(62), In the ultimate analysis, the case of the petitioner fails on the count of mala fides. The stand that the adverse entry recorded against him was the solutory entry has been found by us to be factually incorrect. The service record of the petitioner is not as clean as claimed by him. The entry in question made by the reporting officer respondent No. 2 was confirmed by Hon’ble the Chief Justice in review and nothing has been said by the petitioner in this regard and, therefore, it is held that an entry which has been made after thorough consideration and objective assessment cannot be made the basis of judicial review.
(63). Consequently, the writ petition fails. The writ petition having no merit is dismissed. There will be no orders as to costs.