JUDGMENT
R.K. Singh, J.
1. Appellant Jagdish Chandra Sharma was appointed in Uttar Pradesh Judicial Service as Munsif on 10.12.1976 and after training at Ghaziabad he joined the service on 24.1.1977. He spent his tenure on the post of Munsif at Ghaziabad, Hardoi, Meerut and Muzaffarnagar and was promoted as Civil Judge on 15.2.1986. When the petitioner was posted at Dehradun as Civil Judge, District Judge, Dehradun reported that the petitioner has used harsh words against one Senior Advocate while disposing of one amendment application. An adverse entry was awarded by the Administrative Judge for the year 1986-87 in the following words :-
“Disposal 132.39%. During my annual inspection, I found that the Court of the Officer was being boycotted by all the Advocates of Dehardun Bar. On enquiry I found that the behaviour of the officer towards certain Advocates was not good. The Officer was transferred on administrative grounds. I will rate the merit of the officer as poor. Integrity Certified.”
2. Thereafter in the year 1987-88 the petitioner was transferred to Moradabad At Mordabad the petitioner got a good entry for the year 1987-88 but for the year 1988-89 the Administrative Judge gave adverse entry in the following words :-
“Out-turn works out to be 150%.. Relations with the members of the Bar and brother officers are reportedly good. Judgments on law and facts are average in quality, Upon over all assessment, Disrtrict Judge rates him a good officer.”
I differ with the District Judge in his assessment about the officer. His relations with the brother officers are not good. He is an ill-tempered officer who is disrespectful to his superior officers. There are complaints aspersing upon his reputation as honest officer. In the absence of positive proof, his integrity is certified.”
3. In the later year i.e. 1989-90 also the Administrative Judge gave the following entry :-
“Out turn works out to be 121.27% which is adequate. District Judge rates him good officer who is impartial and does not lose temper in the Court. His relations with the members of the Bar and brother officers have also been reported to be good. I do not concur with the District Judge in his assessment of the Officer.
I have received several complaints aspersing upon the officer against his work, conduct and even his integrity. He was involved in misbehaving with Sri B.K.Rathi, the then 1st Additional District Judge, Moradabad in his chamber. 1 have concrete reports that the officer has predilection for a particular community and hostility towards another. Recently, I have received complaints that the officer has decided certain cases after he had handed over the charge of his office in Moradabad. The allegations are being looked into. He has been actively involved in polarising the officers into two groups while posted at Meradabad Judgeship. His relations with the members of the Par and brother officers were punctuated with discordance. Upon overall assessment I rate him a poor officer whose work and conduct has been unbecoming of a Judicial Officer.
Till enquiry being made by me is complete, certificate of his integrity is withheld.”
4. These adverse entries were communicated to the appellant and the appellant represented his case with a prayer to expunge the adverse remarks. The representations were rejected by the Administrative Judge as well as by the Administrative Committee, while rejecting the appellant’s representation against the adverse entry of 1986-87 the Administrative Judge’s order dated 9.6.90 is under :-
“I have scrutinised the papers on the file. Perused the representation in the light of the adverse remarks given by this Court for the year 1986-87.
The Officer appears to be a captive of his habits and to be always itching for confrontation with the Bar wherever he has been posted as is borne out from the record. Prior to this there were adverse remarks harping on his bad relations with the Bar. At a time even certificate of his integrity was withheld. He is an inveterate and has shown no sign of improvement in his behaviour towards the Bar. There are complaints even at Moradabad about his rude behaviour towards the members of the Bar. Upon a consideration, I feel, that his representation merits no consideration and is accordingly rejected.”
5. The appellant filed writ petition No. 7894 of 1990 and during its pendency filed another writ petition No. 32118 of 1991. Both he writ petitions were heard together and were disposed of by learned Single Judge of this Court by judgment and order dated 18.4.1994. The prayer in the writ petition is :-
i. issue a writ, order or direction in the nature of certiorari quashing the adverse entry made for the year 1986-87, 1988-89 and 1989-90 communicated to the petitioner on 16.5.1991 finally by rejection of his review petition in Administrative Committee Meeting dated 23,10.1991 and further to quash the proceeding dated 5.8.1989 of the Hon’ble High Court in so far as it did not approve the name of the petitioner for promotion to Higher Judicial Service,
ii. issue a writ, order or direction in the nature of mandamus directing to respondents Nos. 1 and 2 to promote the petitioner on the post of Additional District Judge in Higher Judicial Service alongwith the officers of his batch on his due place and grant subsequent and other consequential benefits of seniority and salary including fixation of pay and also to grant the selection grade from the date the petitioner was eligible and the petitioner be also awarded interest at the rate of 19% per annum on the amount withheld as he has suffered loss of interest on this amount.
iii. issue a writ, order or direction in the nature of mandamus directing the respondents Nos. 1 and 2 to keep one post of Higher Judicial Service for the petitioner and not to confirm to the aforesaid cadre any person junior to the petitioner in service till the disposal of this writ petition,
iv. issue a writ, order or direction in the nature which this Hon’ble Court may deem fit and proper in the circumstances of the case. award costs of this writ petition to the petitioner as well as compensatory costs.
6. In earlier writ petition No. 7894 of 1990 the petitioner’s prayer is only against the adverse entry for the year 1986-87 and further prayer is to quash the proceeding dated 5.8.1989 of the Hon’ble High Court not approving the petitioner’s name for promotion to Higher Judicial Service.
7. The learned Single Judge of this Court by the impugned judgment and order while disposing of these two writ petition has passed the order:
“Considering the entire service record and the facts and circumstances stated above, in my opinion, the annual entries for the year 1988-89 and 1989-90 are unjust, uncalled for and are not based on any particular relevant material. These entries, in my opinion, are liable to be expunged. However, from the subsequent service record, the officer appears to have realised his shortcomings and has taken care with the result the subsequent entries indicatie good and meritorious work and conduct of the petitioner. The petitioner has already suffered sufficient punishment of supersession. It would be in the interest of justice that the petitioner’s case be now considered for promotion on the post of Additional District Judge in Higher Judicial Service in the present vacancies and his seniority and salary be fixed accordingly. The prayer of the petitioner for fixation of his seniority alongwith officers of the batch who have already superseded him and salary and other benefits for the past period is rejected.
In the result, writ petition No. 7894 of 1990 is hereby dismissed and writ petition No. 32118 of 1991 is hereby allowed. There will be no order as to costs in both the -writ petitions.”
8. Against this judgment and order the petitioner has filed second appeal No. 418 of 1994 whereas the High Court of Judicature at Allahabad through Registrar and the State of U.P. have filed Special Appeal No. 669 of 1994. Since both these appeals are directed against the one and the same judgment of this Court noted above, therefore, both the appeals have been heard together and both the appeals are being decided by this judgment. Leading appeal is now treated appeal No. 418/94 and this judgment will be attached with this file.
9. We have heard Mr. Ashok Nath Tripathi, learned Counsel for the appellant and Sri Sunil Ambwani, learned Counsel for the respondents at length and in details.
10. Mr. Tripathi has attached the impugned judgment and order on the ground that the adverse entries were without any concrete material and so they were fit to be quashed, but the adverse entry of 1986-87 has not been quashed putting it on a different scale than the entries of 1988-89 and 1989-90 which have been quashed finding them to be without any just basis. Further submission of Mr. Tripathi is that in the resolution of this Court dated 5.8.1989 the case of the petitioner’s promotion to the cadre of Additional District Judge in Higher Judicial Service was kept in abeyance till receipt of the Court entries for the year 1988-89 and 1989-90 and the impugned judgment quashed the adverse entries of the appellant for the year 1988-89 and 1989-90 and the later entry of 1990-91 was good entry, therefore., the petitioner’s case for promotion should have considered and the petitioner should have been allowed to be promoted to the rank of Additional District Judge in the Higher Judicial Service but the petitioner has not got that relief without any proper application of judicial mind by this Court. It has been strongly argued that the petitioner who is a judicial officer deserves protection of this Court as well as of the Supreme Court in view of the petitioner being open to such frivolous ocomplaint by disgruntledement in Court proceedings and so the adverse entries must be quashed if they are not based on concrete materials. The impugned judgment, according to Mr. Tripathi, has not appreciated the facts while rejecting the petitioner’s prayer to quash the adverse entry of the year 1986-87. It has been urged that the adverse entry of 1988-89 and 1989-90 have been quashed for the same reasons and without having any ground to differentiate between the nature of adverse entries for the year 1986-87 and the adverse entries for the year 1988-89 and 1989-90 the learned Single Judge has wrongly rejected the petitioner’s prayer for quashing entries for the year 1986-87. In his support he has placed reliance on the following cases :
1. State of Haryana v. P.C. Wadhwa, I.P.S. Inspector General of Police and Anr., (1987) 2 SCC 602.
2. The Regional Manager and Anr. v. Pawan Kumar Dubey, AIR 1976 SC 1766.
3. State Bank of India and Ors. v. Kashinath Kher and Ors., (1996) 8 SCC 762.
4. S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424.
5. Gurdial Singh Fijji v. State of Punjab and Ors., A.I.R. 1979 SC 1622.
6. Union of India and Ors. v. K.V. Jankiraman and Ors., (1991) 4 SCC 109.
7. Mahender Singh v. Union of India and Anr., 1991 Supp. (2) SCC 127.
8. Chandra Gupta I.F.S. v. Secretary, Govt. of India, Ministry of Environment & Forests and Ors., (1995) 1 SCC 23.
9. Sukhdeo v. Commissioner, Amravati Division, Amravati and Anr., (1996) 5 SCC 103.
10. Union of India and Ors. v. E.G. Nambudiri, (1991) 3 SCC 38.
11. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.
11. Mr. Sunil Arribwani, learned Counsel for the respondent has pointed out observations of the learned Single Judge in the impugned judgment while applying reasons for quashing the adverse entries for the year 1988-89 and 1989-90.”……………………….”While commenting on the conduct by the Administrative Judge specially when disagreement has been shown to the assessment made by the District Judge there should be some positive material available before doubting about his integrity. It is surprising that no specific incident was indicated while differing with the assessment of the District Judge in mentioning in the adverse entry for the year 1988-89 that the officer is ill tempered and disrespectful to his superior officers and there were complaints aspersing upon his reputation as honest officer as stated above, the judicial officers are under threat and complaint and enquiry by the High Court and if it is encroached in petty matters by the unanimous complaints the officers of subordinary judiciary will not be able to administer justice in an independent and honest manner. In my opinion it was incumbent on the commenting authority to have indicated some positive incident or material while disagreeing with the comment of the learned District Judge who had reported that the relations with the members of the Bar and brother officers are good and on an over all assessment, he is a good officer. This has also to be seen in the light of the entries of the previous year and the subsequent years.
12. Similarly in the year 1989-90 while assessing the work and conduct the Administrative Judge has received several complaints aspersing upon the officer against his work, conduct and even his integrity. The complaint in case received by the Administrative Judge should be on record and should also be enquired before any adverse opinion is affirmed. In the report of the District Judge, there is no mention of any complaint received against the officer of any complaint which was enquired into at any stage. It has been stated in the entry that there were concrete report that the officer has predilection for a particular community and hostility towards another. None of the reports find place on record and neither any enquiry on that basis was made nor any effort was made to ascertain the authenticity of the report. The allegations of the complaints were being enquired, yet before attaining any positive adverse report, the adverse entry has been awarded. The output of the work indicated in the report of the District Judge was 121.27% yet he has been treated to be a “poor officer” in his work. An incident of petitioner’s involvement in misbehaving with Sri B.K. Rathi, the 1st Addl. District Judge, Moradabad, has been mentioned but there is no mention of this incident in the report of the District Judge nor there is any material or any report of Sri B.K. Rathi to establish this fact. Even if there were an oral complaint by Sri B.K. Rathi who was a Senior Officer some enquiry should have been made either from the petitioner or through the District Judge before incorporating the incident of the involvement of the petitioner in character roll. In my opinion all this is necessary when there is no material placed on record recording the adverse complaint, reports or adverse material. In the present circumstance, the District Judge has not made any comments whatsoever, on the other hand he has assessed the work and conduct as also the integrity of the officer as above board. In the adverse entry for the year 1989-90, the integrity has been withheld till the enquiry was completed by the Administrative Judge.
13. From the material on record, no enquiry whatsoever was conducted nor any explanation at any stage was called for from the officer. The withholding of integrity of the officer without there being any sufficient cause or material on record also appears to be unjust, unfounded and arbitrary. The officer in his explanation has also indicated that at the relevant time, for the year 1988-89, the Hon’ble Judge had taken over the charge of the Zone in December, 1989 as also for the year 1989-90 for a very short period, the Hon’ble Administrative Judge had occasion to watch the work and conduct of the officer and even in this short period, he received complaints against him and has commented after disagreeing with the report of the District Judge on the basis of his personal assessment. The alleged complaints were never brought to the notice of the District Judge. The petitioner while he had stayed at Moradabad, his work and conduct was attached by three District Judges and did not receive any adverse comment either with regard to his work and conduct or integrity. Two Administrative Judges, on the basis of report of the District Judge had also rated the petitioner as a good officer and nothing whatsoever adverse was commented.”
14. Mr. Sunil Ambwani has pointed out the adverse entry recorded by the Administrative Judge for the year 1988-89 and 1989-90 to stress his point. He has pointed out that in the confidential report of 1988-89 the Administrative Judge has certified the integrity of the officer in absence of positive proof aspersing his reputation as an honest officer which speaks the mind of the Administrative Judge who certified the integrity of the officer without being swayed by the complaint aspersing upon the officer’s reputation as honest officer. The relations with the brother officers and the officer’s temper have of course been recorded on the basis of the assessment of the Administrative Judge himself. For this fact Mr. Sunil Ambwani argues that reporting officer who is Administrative Judge of the petitioner is competent to have his assessment about the conduct and nature of the officer who was watched by the Administrative Judge. This assessment need not be the same which the District Judge was carrying about the officer. Mr. Sunil Ambwani argues that it was not expected that the Administrative Judge should agree with the assessment of the District Judge on the points on which the Administrative Judge has the personal satisfaction about the conduct and behaviour of the officer. Mr. Ambwani further points out that in the confidential report for the year 1989-90 the Administrative Judge has specifically noted that he has received several complaints aspersing upon the officer against his work, conduct and integrity. He was involved in misbehaving with Mr. B.K. Rathi the then 1st Addl. District Judge in his chamber. Further the Administrative Judge has noted that he has concrete reports that the officer has predilection for a particular community and hostility towards another. Further the Administrative Judge has disclosed that he has received complaints that the officer has decided certain cases after he had handed over the charge of his office at Moradabad and the allegations are being looked into. The Administrative Judge has further noted that the officer has been actively involved in polarising the officers into two groups while posted at Moradabad Judgeship. His relations with- the members of the Bar and brother officers were punctuared with discordance. Upon overall assessment the Administrative Judge has rated the officer as ‘poor officer’ whose work and conduct was an unbecoming of a Judicial Officer. Mr. Sunil Ambwani has argued that the remarks are passed on the personal assessment of the Administrative Judge and these confidential remarks are not subject to judicial review in a Court of law. According to Mr. Ambwani the impugned judgment has contained the observations which were not within the judicial powers of the hearing the writ petition against the adverse entries awarded by the Administrative Judge. According to Mr. Ambwani the learned Single Judge appears to have acted as Appellate Authority against the adverse entries recorded in the report of the Administrative Judge and has tried to find fault in absence of concrete material. In these material facts Mr. Ambwani argues that it was not within the jurisdiction of the Court and so the finding recorded by the learned Single Judge quashing the adverse entries for the year 1988-89 and 1989-90 are without jurisdiction. In his support Mr. Ambwani has placed reliance on the cases of :
1. Swatantar Singh v. State of Harnaya, (1997) 4 SCC 14.
2. Air Vice Marshal S.L Chhabra v. Union of India and Anr., 1993 Supp(4)SCC 441.
3. Bharat Ram Meena v. Rajasthan High Court at Jodhpur, (1997) 3 SCC 233.
15. The case of the petitioner in the writ petition is not that the Administrative Judge had any ill will or bias against the petitioner and the annual confidential report recorded by the Administrative Judge were influenced by any such ill will or bias. The learned Single Judge has been influenced by the fact that the adverse entries did not contain any concrete complaints or reports on the basis of which these remarks against the temper and behaviour of the appellant has been described to be unbecoming of the Judicial Officer. The entries for the year 1988-89 and 1989-90 have mention of certain concrete facts. The Administrative Judge has specifically noted that he had report that the officer has, after handing over charge at Moradabad, decided a number of cases and that complaint was being enquired into by the Administrative Judge. He has further noted that the officer had misbehaved with Sri B.K. Rathi, 1st Additional District Judge, Moradabad as he then was. These are two concrete facts which the Administrative Judge has noted in the adverse remarks. In presence of these concrete facts the remark of the learned Single Judge that the remarks are without supporting material is not just and proper. The further remarks of the learned Administrative Judge is that the officer had created two groups of the officers at Moradabad and the officer had preference for a particular community in the members of the bar. These remarks are based on the personal knowledge and assessment which the Administrative Judge had occasion to get while being Incharge of the Zone since December, 1989. The annual confidential remark contains the assessment of the work which the Reporting Officer has gathered during the period of his supervision of the officer for the reporting year and while recording these adverse. remarks the Reporting Officer is not expected to send all the complaints or materials which were considered by him while making assessment of work and conduct of the officer about whom he is submitting the confidential report. The adverse portion of the annual confidential report is communicated to the officer concerned to facilitate him to express his views about the entries. The officer has occasion to submit his representation in writing which is considered by the Administrative Judge as well as by the Administrative Committee and in this way there is all protective measure to protect the officer. In the Bharat Ram Meena. v. Rajasthan High Court At Jodhpur, (1997) 3 SCC (supra), in para 14 of the judgment the Hon’ble Supreme Court has observed the annual confidential report was written on the basis of allegations made against the appellant by the District Judge. The appellant has his opportunity to make representation against the report which he did. The appellant is to be judged on the strength of his work and the conduct. We do not find that the assessment of the merit of the appellant can be treated in any way as arbitrary or without any factual basis. Nothing has been brought on record to justify the Court in exercise of its writ jurisdiction to intervene and quash the adverse remarks in the Annual Confidential Reports of the appellant. In para 15 of the Hon’ble Supreme Court further says that the appellant’s grievance is that the High Court should not have summarily dismissed the writ petition, but should have examined the facts in detain. We have set out the allegations against the appellant in extenso. He has, of course denied the allegations, but it is a matter of appreciation of evidence. The writ Court rightly decided to enter into the controversy.
16. In Air Marshal S.L. Chhabra, VSM (Retd.) v. Union of India and Anr., 1993 Supp (4) SCC 441, the Hon’ble Supreme Court has held in para 10 that “the Court cannot encroach over this power by substituting its own view and opinion. According to us, there is no scope to interfere with the decision of the Selection Board of 1987, merely on the ground that adverse remarks in the Appraisal Report of 1986, which were placed before the Selection Board in the year 1987, were later expunged.”
17. In Swantar Singh v. State of Haryana and Ors., (1997) 4 SCC 14 (supra), the Supreme Court in para 5 of the judgment observed, “we find no force in the contention. It is true that in view of the settled legal position, the object of writing the confidential reports of character roll of a government servant and communication of the adverse remarks is to afford and opportunity to the officer concerned to make amends to his reminssness, to reform himself; to mend his conduct and to be disciplined to do hard work,, to bring home the lapse in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a Government servant reflecting as accurately as possible his sagging inefficiency and incompletency. The defects and deficiencies brought home to the officer, are meanse 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.” In para 6 the Hon’ble Supreme Court has noted ………….”The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record. It would therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence, like the remarks made by the Superintendent of Police. More often, the corrupt officer manipulates in such a \vay and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself to be an efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-a-vis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, ‘prove honesty and integrity in future in which event, obviously, the authority would appreciate and make necessary remarks for the subsequent period. 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.”
18. In Union of India and Ors. v. E.G. Nambudiri, (1991) 3 SCC 38, the Hon’ble Supreme Court has held in para 6 : “Entries made in the character roll and confidential record of a Government Servant are confidential and those do not by themselves affect any right of the Government Servant, but those entries assume importance and play vital role in the matter relating to confirmation, crossing of efficiency bar, promotion and retention in service. One an adverse report is recorded, the principles of natural justice require the reporting authority to communicate the same to the Government Servant to enable him to improve his work and conduct and also to explain the circumstances leading to the report………………..Any adverse report which is; not communicated to the Government Servant, or if he is denied the opportunity of making representation to the superior authority, cannot be considered against, him. See : Gurdial Singh Fijji v. State of Punjab. In the circumstances it is necessary that the authority must consider the explanation offered by the Government Servant and to decide the same in fair and just manner………..In the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reason.”
19. When we examine the impugned judgment and order in the light of these principles, the observation of the learned Single Judge do not appear sound. The entries made in the year 1988-89, .1989-90 by the Administrative Judge expressing his opinion about the habit, nature, work and conduct of the appellant cannot be questioned in a judicial proceeding on the ground that there is no supporting material supplied by the reporting officer in support of thhis remark. This Court in hearing writ petitions is not to evaluate evidence to find out the correctness of the confidential annual remark awarded to the aggrieved officer.
20. The case relied by Mr. Tripathi, learned Counsel for the appellant do not touch the point involved in the present dispute.
21. In S.N. Miukherjee v. Union of India, AIR 1990 SC 1984, the grievance of the writ petitioner was against the validity of the finding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Staff confirming the findings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition filed by the appellant under Section 164(2) of the Army Act, 1950. Thus the fact of the case was after awarding sentence by the controlling officer on the allegation against the officer. In the present appeal the appellant is challenging the adverse entries recorded by the Administrative Judge. Thus the petitioner’s case is clearly distinguishable.
22. In Sukhdeo v. Commissioner, Amravati Division, Amravati and Anr., (1996) 5 SCC 103 (supra), the point in consideration was the procedure, rule and power in compulsory retirement of an officer, so this case is also distinguishable from the appellant’s case.
23. In Chandra Gupta I.F.S. v. Secretary, Govt. of India, Ministry of Environment & Forests and Ors., (1995) 1 SCC 23, the correctness of the judgment of the Senior Administrative Tribunal, Lucknow dated 15.9.1992 was challenged. In this case the short question for consideration of the Hon’ble Supreme Court has been noted in para 20 of the judgment and the Court observed that after expunction of the adverse remarks the petitioner’s case should be reconsidered for according his seniority with retrospective effect.
24. The appellant’s case is clearly distinguishable.
25. In Mahendra Singh v. Union of India and Anr., 1991 Supp. (2) SCC 127, the point for consideration was that should be the principle in dismissing the Government Servant or removing or compulsorily retiring the Government Servant as a measure of penalty. These are completely different facts from the facts of the appellant in this case, therefore, this case does not help the appellant in any way.
26. In Union of India and Ors. v. S.V. Jankiraman and Ors., (1991) 4 SCC 109 (supra), the point involved was sealed cover procedure while considering the case of promotion of Government Servant against whom departmental proceedings were pending. This is not a case in hand, therefore, this case is also of no use for the appellant.
27. In Gurdial Singh Fijji v. State of Punjab and Ors., AIR 1979 SC 1622, validity of resolution No. 1.1 vis-a-vis regulation Nos, 4 & 5 of India Administrative Service (Appointment by Promotion) Regulation, 1955 was challenged. The appellant’s case is quite different on facts and principle of law involved on both counts. Therefore, this case is of no help for the appellant.
28. In S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, the petitioners challenge was relating to the order for compulsory retirement of the petitioner. This is perfectly distinguishable from the facts of the appellant’s case in hand.
29. In State Bank of India and Ors. v. Kashinath Kher and Ors., (1996) 8 SCC 762, the eligibility of the employee Kashinath Kher and others for promotion in view of the State Bank of India Rules was for consideration before the Supreme Court and the appellant’s case is perfectly different so this case law does not appear useful for the appellant in this appeal.
30. In State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police and Ors., (1987) 2 SCC 602, the delay in communication of the adverse confidential report to the employee and the effect of the delay was point for consideration before the Hon’ble Supreme Court. In this appeal there is no such dispute, therefore, this case is also of no use for the appellant.
31. In Regional Manager and Anr. v. Pawan Kumar Dubey, AIR 1976 SC 1766 (supra), the punishment of reversion of Pawan Kumar Dubey from the post of Senior Station Incharge in which he was officiating to his substantive post of Junior Station Incharge by means of an order dated 20.2.1973 passed as a measure of punishment infilicated upon him for the alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25.1.1973, was questioned, The appellant’s case is quite different on facts and principle of law involved. So this case is also not helpful for the appellant in this appeal.
32. The dispute raised by the appellant Jagdish Chandra Sharma relates to the validity of the adverse remarks recorded by the Administrative Judge for the years 1986-87, 1988-89 and 1989-90 on several counts which are based on the alleged absence of sufficient materials for passing those adverse remarks. This question raised in the writ jurisdiction of this Court under Article 226 of the Constitution of India expects consideration of the materials giving impression in the mind of the reporting officer and value of those materials to justify the opinion and impression gathered by the reporting officer to record the same in confidential report. These expectations of the writ petitioner cannot be adjudicated by this Court under Article 226 of the Constitution of India. The adverse remarks are based on personal assessment of the reporting officer which he gathered from the work, conduct and behaviour of the officer concerned which the controlling officer sees and gathered during the reporting period. The scope of writ jurisdiction does not include evaluation of materials for justifying annual confidential report. These reports are subject matter of scrutiny at the stage when it is communicated to the officer concerned and he files his representation against the remarks. The learned Single Judge in exercise of his extraordinary power under Article 226 of the Constitution has started examination of sufficiency of materials to justify the remarks passed by the Administrative Judge for the year 1988-89 and 1989-90 which was not within writ jurisdictions as observed by Hon’ble Supreme Court in Bharat Ram Meena v. Rajasthan High Court at Jodhpur and Ors., (1997) 3 SCC 233 (supra), because few adverse entries are expunged it does not became a case for promotion of that employee as observed by the Hon’ble Supreme Court in Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union of India and Anr., 1993 Supp (4) SCC 441 (supra).
33. In view of the aforesaid discussion it is beyond doubt that the scope of interference with the confidential report was correctly placed before the learnedSingle Judge. As noted above the scope under Article 226 of the Constitution permitting interference has been well settled by the decisions referred to above which were not placed before the learned Single Judge. It has already been noted above that the Administrative Judge had enough material before him to record the Annual Confidential Reports for the years 1988-89 and 1989-90. It has further been noted above that the reasons which had discussed’ the learned Single Judge from interfering with the confidential reports for the year 1986-87 were fully attracted and applicable for the years 1988-89 and 1989-90 and, therefore, just as the entries for the year 1986-87 were not interfered with and left intact, the entries for the years 1988-89 and 1989-90 shall also have to be maintained just as the entries for the year 1986-; 87. Accordingly, the Special Appeal No. 669 of 1994 filed by the High Court has to succeed while Special Appeal No. 418 of 1994 filed by the officer I concerned must fail.
34. In the result the appeal of the appellant Jagdish Chandra Sharma is dismissed and the appeal of the High Court of Judicature at Allahabad is allowed. The judgment and the order passed by the learned Single Judge in writ petition No. 32118 of 1991 allowing the same is hereby set aside.
35. In the Special circumstances the parties will bear their own costs.