JUDGMENT
Shiv Kumar Sharma, J.
1. The petitioner seeks to set aside his adverse Annual Performance Appraisal Report (for short ‘APAR’) for the year 1997-98 and prays to issue direction to the respondents to consider his case for promotion to the post of Rajasthan Police Service (Super-time Scale) and to the cadre of Indian Police Service.
2. As per the facts stated in the writ petition the petitioner joined Rajasthan Police Service (for short ‘RPS’) on the recommendation of Rajasthan Public Service Commission (for short ‘RPSC’) on December 1, 1982. Thereafter the petitioner was promoted to the post of Additional Superintendent of Police in the year 1991 and selection scale was granted to him in the year 1996-97. When the petitioner was not considered for promotion to the cadre of Indian Police Service because of Adverse APAR of the year 1997-98. The petitioner made prayer by serving notice for demand of justice on the respondents for not considering the adverse APAR since the same were not communicated to the petitioner but the respondents did not consider the prayer. The petitioner therefore approached this court invoking powers under Article 226 of the Constitution.
3. The respondents in the return to the writ petition pleaded that although adverse ACR was communicated to the petitioner through Director General of Police, vide letter dated September 5, 1998, the receipt of the same was not available. The Departmental Promotion Committee considered the APAR of the officers falling in the zone of consideration for promotion to Indian Police Service. Since the APAR of the petitioner was adverse, his case was not considered.
4. I have given my anxious consideration to the rival submissions.
5. A bare look at the material on record reveals that following adverse entries were entered into APAR for the year 1997-98 of the petitioner:-
“(i) There was a case of embezzlement of government funds by a clerk in zone Ajmer when he was the Zone Officer.
(ii) During the period under review the officer remained posted as Additional S.P., CID (CB) Ajmer from 1.4.97 to 30.8.97 and Additional S.P. (II) SB, Bharatpur from 4.9.97 to 31.3.98. In part I of the APAR he has completely avoided mention of Ajmer posting, perhaps because of embezzlement case in the special Audit by FA, PHQ’s party which was conducted under SB (Hq)’s request. Supervisory negligence of the Reportee stands proved. Criminal case against LDC is under investigation.”
6. It appears from the record that the said adverse entries were recorded on September 5, 1998. According to the petitioner the same were communicated to him on May 27, 2003 and on June 11, 2003 he submitted detailed representation against these remarks establishing the fact that there was no supervisory negligence on the part of the petitioner and adverse entries so made were not bonafide.
7. It further appears from the record that the APARs of the petitioner, except for the year 1997-98, have been “outstanding” or “very good” in the total career of 29 years (7 years in BSF as Assistant Commandant and 22 years in Rajasthan Police). The petitioner received a number of commendations and appreciation certificates from the department.
8. Their Lordships of Supreme Court had occasion to consider the object of making communication of adverse remarks in various cases. In State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police and Anr. ((1987) 2 SCC 602), Hon’ble Supreme Court in para 14 observed as under: –
“The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve this service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty-seven months. It is true that the provisions of Rules 5, 6, 6-A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6-A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty-seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent.”
9. In Baidyanath Mahapatra v. State of Orissa and Anr. (AIR 1989 SC 2218), the Hon’ble Supreme Court in para 5 observed as under:-
“When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history. It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion. It is also settled view that it is not permissible to prematurely retire a Government servant on the basis of adverse entries, representations against which are not considered and disposed of.”
10. In State of U.P. v. Yamuna Shanker Misra and Anr. ((1997) 4 SCC 7), the Hon’ble Supreme Court observed in para 7 as under:-
“The object of writing the confidential reports and making entries in them 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 thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of performance of the subordinate officer. It should be founded upon facts and circumstances. Though some-limes, it may not be par! of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make adverse entries in confidential reports the reporting/reviewing officers should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, con-duct, behaviour, integrity or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the confidential report 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 a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.”
11. In Swatantar Singh v. State of Haryana and Ors. ((1997) 4 SCC 14), Hon’ble Supreme Court in para 5 observed as under:-
“The object of writing the confidential report of a government servant and communication of the adverse remarks is to afford an opportunity to the officer concerned to make amends to his remissness; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home the lapses in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require and objective assessment of the work and conduct of a government servant reflecting as accurately as possible his sagging inefficiency and incompetency. The defects and deficiencies brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore, would contain the assessment of the work, devotion to duty and integrity of the officer concerned.”
12. It is established by the petitioner that the adverse entries incorporated in the APAR made on September 5, 1998 were communicated to the petitioner for the first time on May 27, 2003. The respondents could not controvert this fact satisfactorily that the adverse entries of the petitioner for the year 1997-98 made on September 5, 1998 were communicated to the petitioner on May 27, 2003.
13. As already noticed that instate of Haryana v. P.C. Wadhwa (supra); where the adverse remarks were communicated to the employee after 27 months, the Hon’ble Supreme Court did not approve the inordinate delay made in communicating ,the adverse remarks. Ratio indicated in P.C. Wadhwa’s case is squarely applicable to the fact of this case.
14. Since the representation of the petitioner against the adverse entries was pending and the respondents proceeded to hold the meeting of Departmental Promotion Committee, this court, in view of the settled position of law that uncommunicated adverse entries cannot be used against an employee at the time of promotion, directed the respondents vide interim order dated July 3, 2004 to consider the case of the petitioner for promotion, ignoring the adverse entries made in APAR of the petitioner for the year 1997-98 on September 5, 1998 and to keep the result in sealed cover.
15. Since the representation of the petitioner against the adverse entries is still pending, I dispose of the writ petition in following terms:-
(i) I direct the respondent State of Rajasthan In decide the representation of the petitioner, In view of the mandate of the Hon’ble Supreme Court referred to as above, within a period of one month from the date of receipt of copy of this order.
(ii) The result that was kept in sealed cover pursuant to the interim order dated July’ 3, 2004 of this court shall thereafter be forthwith declared.
(iii) There shall be no order as to costs.