JUDGMENT
M.L. Singhal, J.
1. Sher Singh (ASI No. 3/28) 3rd Battalion HAP Hissar, filed suit for declaration against the State of Haryana to the effect that there was no basis for the recording of adverse remarks in his ACR for the period 1.7.90 to 31.3.91 by Commandant HAP, 11-Ird Battalion, HAP, Hissar and as such the said adverse remarks be expunged and order dated 10.3.93 passed by DIG, HAP, Madhuban vide No. 4235/A-4/13 dated 10.3.93 whereby his representation against the adverse remarks was rejected be set aside.
2. It was alleged in the plaint that during the relevant period, he remained ASI in 3rd Battalion HAP, Hisar and served at various places such as Fatehabad, Safi-don and Dabwali during this period. During this period, he remained on leave for two months. During his posting at the aforesaid places, his work was supervised by DSPs. If the period during which he remained posted at the said places and the period during which he remained on leave had been excluded, there was hardly 90 days period left, during which he could be said to have served in 3rd Battalion HAP Hissar. Commandant 3rd Battalion HAP, Hissar had no occasion to supervise his conduct and record confidential report on him. Commandant gave him “C report” for the period in question which means that his honesty/integrity was considered doubtful. As per the instructions of the Punjab Govt. of the year, 1956, he was required to be given an opportunity to improve his work and conduct before recording adverse remarks in his ACR. There was no complaint against him at any time during that period impinging upon his integrity and honesty. He was not afforded an opportunity of being personally heard before these remarks were recorded. Commandant became annoyed with him because he suspected that the complaints against him had been got engineered by him. While recording remarks on his work and conduct, the Commandant took into account the alleged misconduct during his posting at Sirsa. His representation against the adverse remarks was illegally rejected being time barred. He could not file representation in time because earlier he had been on election duty and thereafter he was sent for upper school course.
3. Defendant State of Haryana contested the suit of the plaintiff. It was urged that he was promoted as ASI on temporary basis. He was a habitutal defaulter and had committed several acts of misconduct during his service tenure and had been awarded different punishments on different occasions. Commandant, 3rd Battalion, HAP was competent to supervise his work and conduct during the period of his posting at Fatehabad, Safidon, Dabwali, etc. He remained on leave for a period of 25 days during the relevant period. He thus remained under the supervision of Commandant, 3rd Battalion, HAP, Hissar for 8 months and, therefore, he was competent to record his ACR for the relevant period. He had a quarrel with his subordinate HC Ajit Singh on 21.10.90. Departmental inquiry was conducted against him. He was found guilty. He levelled false allegations against DSP Rajbir Singh. He was again charge- sheeted for this misconduct and was found guilty. Any employee posted in HAP, who is deployed temporarily at a particular station for maintenance of law and order, remains under the supervision and control of the concerned Commandant. It was urged that the adverse remarks had been duly conveyed to him. Recording officer was not bound to give him personal hearing before recording adverse remarks in his ACR. Representation was rightly rejected being time barred. It should have been made within 45 days of the receipt of the adverse remarks by him, while it was made 5 months of the receipt of communication regarding adverse remarks by him.
4. On the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is entitled to get the adverse remarks in his report for the period from 1.7.90 to 31.3.90 expunged as alleged in the plaint ? OPP
2. Whether the order dated 10.3.93 as passed by DIG, HAP, Madhuban, rejecting the representation of the plaintiff is illegal and is liable to be set aside as alleged in the plaint ? OPP
3. Whether the plaintiff has no cause of action to file this suit ? OPD.
4. Whether the suit is not maintainable in the present form ? OPD
5. Whether the suit is time barred ? OPD
6. Whether this Court has no jurisdiction to try and decide the present suit ? OPD
7. Whether the suit is bad for non-joinder of necessary parties ? OPD
8. Relief.
5. Vide order dated 16.9.96, Additional Civil Judge (Senior Division), Hissar dismissed the plaintiffs suit in view of her finding that there is no material on the record to establish that the adverse remarks in the ACR for the period 1.7.90 to 31.3.91 were liable to be expunged and also that there was no material on the record to suggest that his representation had been improperly rejected by DIG, HAP, Madhuban.
6. Not satisfied with the order of Additional Civil Judge (Senior Division), Hissar, plaintiff went in appeal which was dismissed by Additional District Judge, Hissar vide order dated 13.9.1997. Still not satisfied, he has come up in further appeal to this Court.
7. I have heard the learned counsel for the appellant, learned Additional Advocate General, Haryana for the State of Haryana and have gone through the record.
8. It was submitted by the learned counsel for the appellant that remarks recorded in Col. Nos. 9, 10, 11, 12, 13, 14, 16 lacked justification. It was submitted that the remarks recorded in Col. No. 9, were without application of mind on the part of the Commandant as it had no application so far as HAP is concerned of which he was a member. These were ill considered remarks. In Col. No. 14 of the report, comment on the working experience of criminal law and procedure was made and the remark is “average”. It was submitted that while in HAP he had nothing to do with criminal law and procedure. While in HAP, his duty could be to assist the executive police in the maintenance of law and order if deputed to do so. While in HAP he had nothing to do with modem methods of investigation and modem police methods. In column No. 11 “Interests in modern method of investigation and in modern police methods generally”, the remark recorded is “does not keep interest”. It was submitted that he had nothing to do with prevention and detection of crime while in HAP. He had nothing to do so far as investigative skill is concerned and therefore, this remark was ill considered. In Col. No. 12, “Regarding preventive and detective ability”, the remark given, is “average”. While in
HAP, he had no control on any one and therefore, comment in Col. No. 9 on “General Power of Control and Organisational ability” was not justified. In Col. No. 10, personality and initiative, the remark is “average type”.
9. It is true that he had nothing to do with the working of criminal law and procedure when he was in HAP. Remark in Col. No. 14, “working experience of criminal law and procedure” was thus not warranted and was ill considered. Similarly, remarks in Col. No. 12, ”preventive and detective ability” was also not justified and was ill considered. Remarks in Column No. 11 was also ill considered. Remarks in Column No. 9, 11, 12, 14 were ill considered. These are liable to be expunged. Now the question to be seen is whether he was competent to comment upon his work and conduct for the period 1.7.90 to 31.3.91 when he was posted to Fatehabad, Safidon and Dabwali during that period. HAP is a force to assist the executive police such as there is para-military force to assist the military. HAP is deployed at different places as per the exigencies such as the maintenance of law and order or the evacuation of the people from the affected areas when there is break out of epidemic or a natural calamity. Members of the HAP remain under the control and supervision of the concerned Commandant even if they have been temporarily deployed at different places in the maintenance of law and order or meeting natural calamity. Commandant HAP remains in full command of his Battalion. Plaintiff remained on leave during the period 7.3.91 to 7.5.91. Out of this period, only 25 days period fell during which the controlling authority was Commandant HAP 3rd Battalion, Hissar. There was thus about 8 months period during which his performance was to be judged by the Commandant, HAP, 3rd Battalion, Hissar. In evidence, the plaintiff has not mentioned the type of posting he was holding when he was under the control of Commandant 3rd Battalion, HAP Hissar deployed at these places to assist the executive police in the solution of some matter which was not a routine matter. An officer can record ACR of an employee if he has remained under his supervision and control for a minimum period of 3 months. It was submitted by the learned counsel for the appellant that when the appellant was posted at Fatehabad, Safidon and Dabwali how could Commandant, HAP, Hissar who was head quartered at Hissar be watchful of his work and conduct. In support of his submission, he drew my attention to Raj Kumar v. State of Punjab and others, 1992(2) SLR 424, where it was held that an officer who had no occasion to see the working of a subordinate, has no right to record any remarks in his ACR. In Raj Kumar v. State of Punjab (supra) the facts were different. From March 17, 1987 to March 22, 1987 he worked with CBI and therafter from March 23, 1987 to April 10, 1987, he worked in Police Lines at Ludhiana. From April 11, 1987 to May 22, 1987, he worked in the University Examination Hall. Thereafter, he worked with CBI from May 27, 1987 to February 29, 1988. Adverse remarks in ACR for the period July 4, 1987 to February 29, 1987 were conveyed to
him and representation against the adverse remarks was submitted by him which was rejected vide order dated 27.6.1988 vide order dated 24.4.1989, he was retired. During the period 4.7.1987 to 29.2.88, he worked with CBI. During this period, Shri A.P. Pan-dey, SSP, Ludhiana had no occasion to see his working. As per instructions, he was not required to record any remarks in his ACR for the said period. As per instructions issued on 3.5.1960 by the State Government, no reporting officer could record remarks in the ACR of an officer/official under him unless he has seen his work conduct for at least three months. If the officer/official has served under the reporting authority for less than three months, the opinion of the officer under whom the has previously served for at least three months should be obtained. He had thus worked under SSP, Ludhiana for less than 3 months. For the period 4.7.87 to 29.2.88 when he was working with CBI; SSP, Ludhiana had no occasion to see his work. In this case, however, Commandant, 3rd Battalion, HAP, Hissar had not lost supervision and control over him when he was posted to Fatehabad, Safidon, etc. He had been posted there with a view to combating law and order problem or solve some other problem.
10. In my opinion, the remarks in Col. Nos. 9, 11, 12 and 14 of the ACR should not have been recorded by the Commandant 3rd Battalion, HAP, Hisar when he was not concerned with the working of criminal law and procedure and with the prevention and detection of crime and when he was not in control of any unit/company of constabulary. Remarks in Col. Nos. 10, 13 and 16 were justified as these remarks were recorded after the Commandant had made assessment of him by the observance of the day to day duties by him.
11. It was submitted by the learned counsel for the appellant that there was non-application of mind on the part of the Commandant when he recorded ACR on him on columns Nos. 9, 11, 12, 14 because if there had been application of mind on his part, he would not have commented upon him with regard to those areas with which he had no concern. Comment by him on Col. Nos. 9, 11, 12 and 14 suggests that there was no application of mind by him while he recorded this ACR. It was submitted that he recorded this ACR irresponsibly. It was submitted that the confidential roll of an officer is of vital importance in his service career. The reporting officer entrusted with the task of recording the ACR of a member of the service working under him has a very solemn duty to perform. He is expected to watch the work, conduct and character of the officer with an open mind and record his assessment in the ACR truly and conscientiously. The object of recording adverse ACR being to enable the officer reported upon to understand and rectify the defects in the performance of his duties, conduct and character, it is expected that the reporting officer would give timely advice “orally or in writing to the person whenever he finds that the conduct, character or nature of the work of the officer concerned needs improvement. In support of this submission, he drew my attention to State
of Haryana v. P.C. Wadhwa, IPS, AIR 1987 SC 1201. It was submitted that a highly damaging adverse remark in the confidential roll is, likely to block the advancement of his career. Hence the reporting officer who is expected to render guidance to the officer reported upon is under a moral obligation to point out the errors of the officer and watch the effect of the advice before deciding to record a damaging adverse remark in the ACR.
12. In this case, however, nothing has been pointed that while recording the ACR of ASI Sher Singh, Commandant 3rd Battalion, HAP Hissar was actuated by any malice, ill-will or spite against him or that he had not acted objectively. Learned counsel relying upon State of U.P. v. Yamuna Shanker Misra, 1997(2) SLR 311, submitted that reporting officer is required to write confidential report objectively, fairly and dispassionately in a constructive manner in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period. If these objectives are not adhered to in making honest assessment, the prospect and career of the subordinate officer shall be put to great jeopardy.
13. It would bear repetition that in this case nothing has been brought on record that there was any malice, ill-will or spite in the mind of the reporting officer when he recorded remarks on the appellant in his ACR. In the result, the remarks recorded in Col. Nos. 9, 11, 12, 14 are ordered to be expunged. It is further ordered that ACR for the period 1.7.90 to31.3.91 shall be re-recorded by the Commandant, 3rd Battalion, HAP, Hissar after taking into account as if no remarks has been recorded in Col. Nos. 9, 11, 12 and 14. He will also consider the effect of no comment on Col. Nos. 9, 11, 12 and 14 namely whether overall assessment should or should not be upgraded. There is no comment on his honesty and integrity in the entire report and, therefore, it will be taken that there was nothing against his honesty and integrity. Appeal is allowed to this extent. Parties shall bear their own costs throughout.
14. Appeal partly allowed.