# State of U. P. and another v. Dev Raj Vishwakarma & another

- **Citation:** (2011) 3 ILRA 1396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-05
- **Case number:** Writ Petition No. 479 (SB) of 2010
- **Bench:** Uma Nath Singh, Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-dev-raj-vishwakarma-another-42033
- **Pages:** 12

## Text

1396 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
after
reinstatement,
the
appointing
authority could have passed an order of
suspension and till the enquiry was
concluded, he could have remained under
suspension. But in any case, without
reinstating the appellant, enquiry could
not have been conducted afresh.

19. For the reasons aforesaid, the
order of removal from service of the
appellant dated 12.2.04 is liable to be set
aside, which is hereby set aside and the
order passed by the learned Single Judge
dated 22.2.07 is also set aside. As a
consequence of the aforesaid order, we
direct that the appellant shall be reinstated
into service forthwith, but the enquiry
shall be conducted afresh from the stage
of submission of reply to the charge sheet,
which shall be done within a maximum
period of three months. The appellant
shall cooperate in the enquiry. The
appellant shall be paid regular salary from
the date of his reinstatement, but the
arrears
of
salary
for
the
period
commencing from date of passing of the
original removal order i.e. 4.3.1983 till
the date of reinstatement shall abide the
result of fresh enquiry.

20. The award of salary for the
period aforesaid by the learned Single
Judge, without setting aside the order of
removal from service, would not validate
the order of removal from service nor
such an order is covered by any
provisions of the service regulations.

21. The special appeal is allowed.
No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED LUCKNOW 05.12.2011

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Writ Petition No. 479 (SB) of 2010

State of U. P. and another
 ...Petitioner
Versus
Dev Raj Vishwakarma & another

 ...Respondents

U. P. Government Servants (Disposal of
the
representation
against
adverse
annual confidential reports & allied
matters) Rules, 1995-Rule 4 and 5Annual confidential Report-direction of
Tribunal
regarding
conflict
between
Reporting-Reviewing
and
Accepting
officer-remark given by reporting officer
shall prevail-for want of recording the
reasons by the reviewing officer-heldincorrect-Tribunal ought to remand the
remand matter to Reporting Officer to
communicate
such
entries
with
opportunity of representation and decide
the same in accordance with law-entry
word "outstanding" and "good" denotes
inferior in comparison of previous yearcould not effective unless communicated
and opportunity of hearing given-Govt.
to issue clear guidelines with clear
terms, whether good, fair, average, very
good-in view of Dev Dutta Case.

Held: Para 46 and 48

This Court is of the view that the learned
Tribunal cannot take up the role of the
reviewing or accepting authority and
cannot direct the authorities to take into
consideration the views recorded by the
Reporting Officer ignoring the entry
recorded by the Reviewing or Accepting
Authority. While setting aside entry
given by the Reviewing and Accepting
Authority, it was incumbent upon the
learned Tribunal to remand the matter to
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another
1397
the
concerned
authority
with
the
direction to act in accordance with law.

Considering the background of present
case,
we
hereby
direct
the
Chief
Secretary to State Government of U.P. to
issue appropriate Government Order/
Circular for communication of all the
entries (whether poor, fair, average,
good or very good) to all the state
employees as per dictum of Hon'ble
Supreme Court, as laid down in paras 36
& 37 of case of Dev Dutt vs. Union of
India, (2008) 8 SCC 725, with a further
provision for making representation to
the higher authorities and if necessary,
appropriate amendment be made in U. P.
Government Servants (Disposal of the
representation against adverse annual
confidential reports & allied matters)
Rules, 1995.
Case law discussed:
1996 (2) SCC 363; 2006 (3) UPLBEC 2834;
(2008) 8 SCC 725; AIR 1963 SC 395; 1970
SLR 116; 1970 SLR 926; AIR 1981 SC 215;
AIR 1988 SC 1069

(Delivered by Hon'ble D.K. Arora, J.)

1. This bunch of writ petitions have
been filed on behalf of the State of U. P.
for quashing of judgment & order passed
by the learned U. P. State Public Services
Tribunal in different claim petitions.

2. In all these writ petitions a
common legal issue is involved regarding
the issuance of the directions by the
learned Tribunal to the effect that whereever there is a conflict of entries between
those recorded by the Reporting Officer,
Reviewing Authority or the Accepting
Authority, the entry as is recorded by the
Reporting Officer would prevail and
should be read as the actual entry of the
concerned government servant. Such a
direction of the learned Tribunal is based
on the reasoning that the Reviewing or the
Accepting Authority while altering /
changing the entry from a higher one
(higher grading) to a lower one, has failed
to record any justifiable reason for the
same and the same were recorded in utter
violation of the principles of natural
justice. Accordingly, all the writ petitions
are being considered and decided by
means of the common judgment & order.

3. Writ Petition No. 479 (SB) of
2010 (State of U. P. & others vs. Dev Raj
Vishwakarma & another) is taken up as a
leading case in this judgment.

4. By means of this writ petition, the
petitioner (State) has challenged the
judgment & order dated 28.7.2009, passed
by State Public Services Tribunal in
Claim Petition No. 375 of 2009 (Dev Raj
Vishvakarma vs. State of U. P. and
another) whereby the learned Tribunal
allowed the claim petition of the opposite
party no. 1 and the gradings recorded by
the
Reviewing
Authority
and
the
Accepting Authority lowering down the
category of the petitioner from "Utkrisht"
(outstanding) to "Ati Uttam" (very good )
were quashed and a further direction was
issued
to
treat
these
entries
as
"Outstanding" and take necessary steps
for promotion and grant of other service
benefits.

5. The learned Standing Counsel
appearing
for
the
petitioner-State
challenged the order passed by the learned
Tribunal on mainly two grounds. Firstly,
the learned Tribunal failed to appreciate
correctly the procedure prescribed by
various Government Orders for recording
entries in Annual Confidential Rolls
(hereinafter referred to as 'ACRs') of
employees.
Secondly,
the
learned
Tribunal exceeded its jurisdiction in
giving a direction to the State to treat the
1398 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
entry recorded by the Reporting officer as
the final entry and take consequential
steps
regarding
promotion
of
the
claimant-respondent from the date the
junior persons had been promoted.

6. Substantiating the first ground,
the learned counsel for petitioner-state
relied upon three Government Orders
orders dated 28th March, 1984, 30th
October, 1986 and 5th March, 1993,
respectively. The Government Order
dated 28th March, 1984 provides that in
the event of conflict between the grading
as given by the Reporting Officer,
Reviewing Officer and Accepting Officer,
it is the grading given by the Accepting
Officer which would be treated as the
actual grading of an employee. It further
provides that the Reporting Officer should
give clear and specific grounds for
grading
an
employee
as
'Utkrisht'
(Outstanding). The Government Order
dated 30th Oct., 1986 reiterates the same
policy in principle, while enumerating
various Government Orders, issued on the
subject of recording entries in ACRs and
summarising them in a concise manner in
the annexure attached to it. In the
Government Order of 5th March, 1993,
the earlier Government Order issued on
28th March, 1984 has been reiterated, and
in para 2 (2) thereof it has been provided
that in the event of a conflict of grading at
any level, the grading as recorded by the
Accepting Officer would be treated as
final and actual grading of an employee
concerned. The learned Standing Counsel
appearing for the State- Petitioner further
submitted that the record reveals that none
of
these
Government
Orders
were
challenged by any of the claimantrespondents in any of the claim petition.
The learned counsel for the State also
submitted that in the normal hierarchal set
up of Government, the grading recorded
by
the
reporting
officer
who
is
subordinate to the Reviewing Officer and
Accepting Officer, initiates or sets into
motion the process of recording ACRs.
The reviewing officer furthers the process
set into motion which culminates in final
grading given by the Accepting Officer. If
the Reporting Officer's grading is treated
as final, it would result in administrative
chaos.

7. The learned Tribunal has treated
the process of reviewing and accepting as
that of "down grading". "Down grading"
of an entry as understood in Service
Jurisprudence is only when a comparison
is undertaken with previous years' entries
which results in lowering down of marks
of an earlier period of service as recorded
in the earlier ACR.

8. The learned Standing Counsel has
referred to the judgment of the Hon'ble
Supreme Court in the case of U. P. Jal
Nigam
vs.
Prabhat
Chand
Jain,
reported in 1996 (2) SCC 363 where the
Hon'ble Apex Court in para 2 has
observed that if an employee legitimately
had earned an 'outstanding' report in a
preceding year which, in a succeeding
one, and without his knowledge, is
reduced to the level of satisfactory
without any communication to him, it
would certainly be adverse and affect him
at one or the other stage of his career.

9. In the bunch of cases, at hand, the
learned Tribunal had actually drawn no
comparison whatsoever of the grading of
an incumbent going down from the one
recorded in the previous year. On the
other hand, for the same year, where there
has been a conflict between the entry
recorded by the Reporting, Reviewing and
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another
1399
Accepting Officers, the learned Tribunal
has read it as 'downgrading' which clearly
is a misunderstanding of the term.

10. The learned counsel for the
State-petitioner has, in support of the
second ground of challenge, referred to
the direction issued by the learned
Tribunal that not only the entry impugned
by the claimant respondent be treated as
non-existent, it be replaced by the entry of
'outstanding' as recorded by the Reporting
Officer and the employee be considered
for promotion w.e.f. date his juniors have
been promoted. The learned Tribunal had
usurped
the
jurisdiction
of
the
Administrator in replacing the impugned
entries by an entry of "Outstanding." The
learned Tribunal could at the most have
remanded the matter to the competent
authority for taking appropriate steps for
re-recording of the quashed entry after
giving opportunity of hearing to the
employees concerned.

11. Sri Shreesh Kumar, learned
counsel for claimant-respondent while
countering the arguments raised on behalf
of the petitioner-state has relied upon a
judgment of coordinate Bench of this
Court in Surendra Kumar Vs. State of
U.P. 2006 (3) UPLBEC 2834 wherein the
Bench interfered in the grading of "good"
given by Reviewing Officer, the D.M.
Faizabad to a Tehsildar. The Division
Bench has held that no opportunity of
hearing was given to the employee, nor
the D.M. has given any reason for
converting the entires from "outstanding"
to "good".

12. The Division Bench has relied
upon the Supreme Court decision in the
case of U.P. Jal Nigam Vs. Prabhat
Chandra Jain (1996) (2) SCC 363 where
the Hon'ble Apex Court has held that even
where the entry is going a step down, like
falling from "Very good" to "good" , it
may reflect adversely upon the career
prospects of an employee and, therefore,
before recording such an entry in the
succeeding year, the authorities must give
an
opportunity
of
hearing.
The
downgrading
being
reflected
by
comparison to an earlier year; such an
entry may be qualitatively downgrading
and cannot be sustained without any
reason for recording of the same being
apparent from the record.

13. Mr. Shreesh Kumar has also
referred to a Government Order dated
07.5.1981 whereby guidelines were laid
down for awarding fresh remarks in case
of expunction of adverse remarks and it
has been provided therein that if adverse
remarks are expunged by competent
authority
on
representation
of
an
employee, then there is no justification for
awarding fresh remarks as the entry in the
character roll can be made by the same
officer who had seen the work of the
subordinate officer for a minimum and
continuous period of three months.

14. It is further submitted by Sri
Shreesh Kumar that since the entire
procedure for recording A.C.Rs. is
governed by executive instructions and
there are no statutory rules in this regard
and
the
Government
Order
dated
07.5.1981 having not been superseded by
any of the Government Orders, issued
subsequently, it has to be followed by the
administrative
authorities.
On
the
expunction of the entries made by the
Reviewing and Accepting Officers, the
matter could not have been remanded by
the Tribunal to the State Government for
making fresh entry for the year in
1400 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
question as the present incumbents on the
post
of
Reviewing
and
Accepting
Authority have not seen the working of
the
respondent
for
three
months
continuously, as required by the Govt..
Orders.

15. Shri Shreesh Kumar has also
relied upon the judgment rendered by
Hon'ble Supreme Court in the case of Dev
Dutt vs. Union of India and others,
reported in (2008) 8 SCC 725 in which a
Division Bench of the Apex Court has
laid down the law with regard to
communication of all entries, of whatever
nature to an employee concerned in case
he wished to represent against the same to
the competent authority for its upgradation. The Hon'ble Apex Court has
expanded the principles of natural justice
to become applicable to the process of
recording of A.C.Rs.

16. Sri Shreesh Kumar has argued
that in the case of the claimantrespondent, the Reviewing and Accepting
Authority had not given any opportunity
of hearing to the employee before
recording the entry and even after the
recording of the same, it was not
communicated.
Thus,
neither
predecisional nor post decisional hearing was
given to the claimant respondent.

17. The learned Standing Counsel
for the petitioner-state submitted in
rejoinder that the judgment in the case of
Surendra
Kumar
(supra)
has
not
considered the Government Orders dated
28th March, 1984 nor the Compilation
dated 30th October, 1986, nor the
Government Order dated 5th March, 1993
though it does refer to the judgment of the
Hon'ble Supreme Court in the case of
Prabhat Chand Jain (supra), it fails to
appreciate that the said judgment was
rendered in a different context and related
to downgrading of an entry in A.C.R. of
an employee in a subsequent year. The
Division Bench has not recorded any
reason for applying the concept of
downgrading to the process of decision
making in recording entry in A.C.R. of
the same year.

18. The learned counsel for the State
further submitted that after the judgment
in the case of Dev Dutt vs. Union of India
(supra), the legal situation has changed
completely regarding communication of
A.C.Rs. Now, every entry needs to be
communicated to an employee, thus,
giving him an opportunity to make a
representation against the same which is
to be decided by an authority next higher
in rank to the one giving such entry.

19. Communication of the entry
recorded by the Reviewing and Accepting
Officer was not done at the time of
recording of the same as it was not
required in any of the Government Orders
that mid-way in the process of finalisation
of an entry for a particular year, the
officer responsible for the same should
consult the employee concerned and
invite objections to the proposed entry, to
be finally recorded.

20.

Having
considered
the
arguments raised by both the sides and
having gone through the case laws
submitted viz. U.P. Jal Nigam v. P.C.
Jain, Dev Dutt v. Union of India and
Surendra Kumar vs. State of U.P. we find
that while Government Orders dated 28th
March, 1984, 30th October, 1986 and 5th
March, 1993 clearly provide that the entry
recorded by the reporting officer is not to
be considered as final and in the event of
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another
1401
a conflict between the grading given by
the Reporting Officer and that given by
Reviewing Officer or Accepting Officer,
the grading of the Accepting Officer shall
be final grading for the particular period
of service tenure of an employee
concerned. Moreover, other Government
Orders referred to in the compilation
dated 30th October, 1986 do not cast any
duty on the Reviewing or Accepting
Officer to give pre-decisional hearing to
the employee concerned. The only duty
cast upon the Reviewing or Accepting
Officer is to give detailed reasons for not
accepting the grading proposed by the
Reporting Officer and in case an
outstanding grading is recorded, special
reasons for the same are required to be
stated. The State Government has not
framed any statutory rules for recording
of A.C.Rs. and maintenance of service
books. The executive instructions that
govern the field, have not been challenged
by any of the claimant respondents nor
have been considered by the learned
Tribunal.

21. It stands to reason that the
process as started by the Reporting
Officer is furthered by the observations
recorded by the Reviewing Officer and
finalised by the entry made by the
Accepting
Authority.
The
Hon'ble
Supreme Court in the constitution bench
decision
rendered
in
the
case
of
Bachchittar Singh vs. State of Punjab
reported in AIR 1963 SC 395 has held
that internal notings on the files during
the process of decision making do not
confer any enforceable right upon a
litigant seeking benefit from the same.
Unless the order is duly authenticated by
the competent authority and is issued and
thereafter
communicated,
the
whole
situation is in a flux and the authority is
prone to change its mind mid-way and to
decide the same issue in a completely
different manner than it earlier proposed.

22. While going through the law on
the subject of A.C.Rs., we have come
across judgments rendered earlier by the
Constitution Benches of the Hon'ble
Supreme Court which have neither been
referred to in the afore-cited three
decisions relied upon by the counsel for
both the sides nor have been cited before
us at any stage. However, it is settled
position in law that this Court can take
judicial
notice
of
earlier
binding
precedents even if the same are not cited
at the Bar.

23. A Constitution Bench of the
Hon'ble Supreme Court in the case of
Prakash Chandra Sharma vs. O.N.G.C.
1970 SLR 116 was dealing with an
employee
who
challenged
his
supercession by his juniors on the ground
that adverse remarks made in his A.C.R.
had not been communicated to him and as
per the Circular governing the said entries
to be recorded in A.C.Rs, it was necessary
that every employee should know as to
what were his defects. It was argued that
had the appellant therein been given
opportunity, he would have represented
against the adverse remarks relied upon
by the Commission for his supercession
and might have easily satisfied the higher
authority that the remarks were uncalled
for and unjustified. Because of lack of
communication of such adverse remarks,
the petitioner had been discriminated and
therefore, the said adverse remarks could
not be allowed to remain in his A.C.Rs
and stand in the way of his promotion.
The Hon'ble Supreme Court refused to
interfere in the said case.
1402 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

24. Another Constitution Bench of
the Hon'ble Supreme Court in the case of
R.L.Butail vs. Union of India reported
in 1970 SLR 926, while considering the
arguments raised by the appellant therein,
that the Reporting Officer was bound to
hear the appellant before deciding to
make the entry and such recording of
adverse remarks amounted to censure and
a penalty under rule 11 of the Central
Civil Services (Control, Classification&
Appeals)) Rules 1965 and therefore, could
not have been given without affording an
opportunity of hearing, did not agree with
the said argument of the appellant.

25. The Hon'ble Supreme Court held
that a confidential report is intended to be
a
general
assessment
of
work
performance of a government servant
subordinate to the Reporting Authority.
Such reports are maintained for the
purposes of serving a data for determining
the comparative merit when questions of
promotion, confirmation etc. arise. Only
in cases where a 'censure' or a 'warning' is
issued, the officer making the order is
expected to give reasonable opportunity
to the Government Servant to represent
his case.

26. The Constitution Bench in the
case
of
R.L.
Butail
rejected
as
unsustainable
the
argument
of
the
appellant that the omission to provide
opportunity of hearing before making
adverse remarks in the A.C.R would
render
such
report
vitiated.
The
Constitution Bench was of the view that
rules do not provide for a prior
opportunity to be heard before adverse
entry is made in the A. C. R.

27. The Constitution Bench further
observed that it is true that such adverse
remark may be taken into consideration
when a question such as that of promotion
arose and when comparative merits of
persons eligible are considered, but when
a government servant is aggrieved by
adverse remark, he has an opportunity of
making
representation.
Such
representation would be considered and
the higher authority, if satisfied may
either amend, correct or even expunge a
wrong entry, so that it cannot be inferred
that a government servant aggrieved by an
confidential report is without a remedy.
Making of an adverse entry is, thus, not
equivalent to imposition of penalty which
would necessitate an enquiry and giving
of reasonable opportunity of being heard
to the concerned government servant.

28. In other words, the Hon'ble
Supreme Court was of the opinion that
before making any adverse remark in
Annual Character Roll, the Reporting
Officer need not to give any opportunity
of hearing. It is only after such an adverse
entry is made, the same should be
communicated to the government servant
concerned,
who
may
make
a
representation to the higher authorities
against such a report. It is only 'post
decisional' hearing that is envisaged in
cases where reports in Annual Character
Rolls are adverse.

29. In the case of Gurdayal Singh
Fiji Vs. The State of Punjab & others,
AIR 1981 SC 215, the Hon'ble Supreme
Court was considering the case of the
appellant who had been deprived of
selection in Indian Administrative Service
cadre by promotion from Punjab Civil
Service cadre on the ground that the
Government of Punjab had refused to give
integrity certificate to him. The appellant
had made a representation which was
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another
1403
rejected. The Hon'ble Supreme Court in
the said case held that although the
decision of the Selection Committee
could not be influenced by an adverse
report in a confidential roll unless such
report is communicated to the person
concerned so that he has an opportunity to
improve his work and conduct or to
explain the circumstances leading to such
adverse report, the Court was not
competent to issue a direction for
promotion of the appellant. It could only
direct for reconsideration of the whole
case by the competent executive authority
in accordance with relevant Regulations
by applying the test of merit or suitability
cum seniority. It was left to the discretion
of the competent authority to work out the
details and pass appropriate order after
giving opportunity of hearing to the
appellant.

30. That in the case of Union Public
Service Commission Vs. Hiranyalal
Dev AIR 1988, SC 1069 the Hon'ble
Supreme Court set aside the directions
issued by the Central Administrative
Tribunal for promotion of the petitioner
after ignoring certain adverse remarks in
his confidential
character roll. The
Hon'ble Court has held that the proper
course to be adopted was that the
direction be issued to the authority
concerned to consider the case of the
employee afresh by indicating a broad
frame work within which the competent
authority should act. No direction could
be issued usurping the jurisdiction of the
competent authority.

31. On examining the issue in light
of the aforesaid facts and circumstances
as well as legal position, we are inclined
to accept the submission of learned
counsel for the petitioner 'State' that the
learned
Tribunal
completely
misunderstood the concept of down
grading. It is really a misnomer to refer to
the disagreement between the reporting,
reviewing and accepting authorities as
''downgrading'. Actually, recording of
Annual Confidential Remarks (ACRs) is a
complete process in itself. The process is
set rolling (as per the time schedule laid
down in G.O.'s) with the first recording
made by reporting officer. In the second
step, the said recording is reviewed by the
reviewing authority and in the next stage
of the process the accepting authority
records his grading. It is this final grading
as is given by the accepting authority that
ends the process of recording of grading.

32. In normal parlance, as also based
on the literal meaning of the term ''downgrading', it would imply when the grade
of an incumbent is pushed down or goes
down. The grade of an incumbent, as per
the Government Orders is the one that has
been
recorded
by
the
Accepting
Authority. The other grades as given by
the Reporting or the Reviewing officer
were only part of the decision making
process ending in the recording of the
ACR of the government servant.

33. In Service Jurisprudence when
we talk about downgrading of incumbent,
it is actually meant that the grading of an
incumbent has gone down as compared to
his grading over the previous years. This
interpretation
of
downgrading
is
deducible also from the judgment of the
Hon'ble Supreme Court in the case of U.
P. Jal Nigam Vs. Prabhat Chandra Jain,
reported in 1996, 2 SCC, 363, in para 2
whereof it has been so observed:

"..........If an employee legitimately
had earned an 'outstanding' report in a
1404 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
particular year, which, in a succeeding
one, and without his knowledge, is
reduced to the level of 'satisfactory'
without any communication to him, it
would certainly be adverse and affect him
at one or the other stage of his career".

34. In the bunch of cases, at hand,
the learned Tribunal had actually drawn
no comparison whatsoever over the
grading of an incumbent going down from
the one recorded in the previous year.

35. On the other hand, for the same
year, where there has been a conflict
between the entries recorded by the
Reporting, Reviewing and Accepting
Authorities, the learned Tribunal has
termed it as ''down grading' which is
clearly a misunderstanding of the term.

36. The only judgment on the
subject (which has also been relied upon
by the concerned government servants) is
in the case of Surendra Kumar Vs. State
of U.P. ( 2006), 3 UPLBEC , 2834
wherein it has been held that the entry as
given by the Reviewing Authority could
not be sustained inasmuch as it went
down by two steps without affording
opportunity and without giving reasons.
Noticeably, the said judgment does not
take into consideration the Government
Orders dated 28th March 1984, or the
compilation dated 30th October, 1986 or
the Government Order dated 5th March
1993. Though it does refer to the
judgment of the Hon'ble Supreme Court
in the case of P. C. Jain which relate to
down gradation in subsequent years, but it
does not record any reasons for applying
the concept of down gradation to the entry
of the same year.

37. Learned counsel for petitioner
has placed reliance upon a case of Dev
Dutt Vs. UOI, (2008) 8 SCC, 725 in
which the Hon'ble Supreme Court has
developed the principle of natural justice
by enlarging the ambit and scope of
Article 14 to reach a conclusion that every
Annual
Confidential
Entry,
whether
adverse or good or very good, deserves to
be
communicated
to an
incumbent
inviting objections thereon and the same
are to be disposed of by an authority
higher than the one who gave the entry.
However, the said judgment does not deal
with situations where the reviewing and
accepting authorities differ in giving
grading and observations as compared to
the reporting authority.

38. In the present circumstances,
there is no dispute between the parties
that in view of prevailing law, none of the
entries were communicated to any of the
government servants. Hence, the impact
of such non-communication may render
the entire entry as being violation of
Article 14 inasmuch as it takes away the
right of representation as has been
elucidated in the Dev Datt's case. Still an
entry would stand adverse or otherwise, in
the character roll of the incumbent and
would form the basis of future service
benefits to the incumbent concerned.

39. As such, the judgment and order
of the learned Tribunal which directs
reading of annual entry recorded only by
the Reporting Authority over and above
Reviewing and Accepting Authorities,
can not be sustained and has to be
necessarily set aside.

40. The Hon'ble Supreme Court in
the case of U.P. Jal Nigam vs. P.C Jain,
(1996), 2, SCC 363, in paragraph 3 had
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another
1405
laid down three guide lines regarding
downgrading in the character roll of an
officer-

(i) communication;

(ii) recording of reasons and

(iii) opportunity to representation

41. The Hon'ble Supreme Court in
the case of Dev Dutt vs. Union of India
(Supra) while dealing with the issue of
Annual Confidential Reports (A.C.R.)
was pleased to observe that it is well
settled that no rule or government
instruction can violate Article 14 or any
other provision of the Constitution, as the
Constitution is the highest law of the land.
The Government Orders, if they are
interpreted to mean that only adverse
entries are to be communicated to the
employee concerned and not other entires,
would become arbitrary and hence,
illegal, being violative of Article 14. All
similar rules, government orders/office
memorandum, in respect of all services
under the State, whether civil, judicial,
police, or other service (except the
military), will hence also be illegal and
are, therefore, liable to be ignored. The
Hon'ble Supreme Court held that fairness
and transparency in public administration
require that all entries (whether poor, fair,
average, good or very good) in the annual
confidential report of a public servant,
whether in civil, judicial, police or any
other State service (except military), must
be communicated to him within a
reasonable period so that he can make a
representation for its up-gradation.

42. The concerned paras 36 & 37 of
the
aforesaid
judgment
are
being
reproduced as under:

36."In the present case, we are
developing the principles of natural
justice by holding that fairness and
transparency in public administration
requires that all entries (whether poor,
fair, average, good or very good) in the
annual confidential report of a public
servant, whether in civil, judicial, police
or any other State service (except the
military), must be communicated to him
within a reasonable period so that he can
make a representation for its upgradation. This in our opinion is the
correct legal position even though there
may
be
no
rule/G.O.
requiring
communication of the entry, or even if
there is a rule/G.O. prohibiting it,
because the principle of non-arbitrariness
in State action as envisaged by Article 14
of the Constitution in our opinion requires
such communication. Article 14 will
override all rules or government orders.

37. We further hold that when the
entry is communicated to him the public
servant should have a right to make a
representation against the entry to the
authority concerned, and the authority
concerned must decide the representation
in a fair manner and within a reasonable
period.
We
also
hold
that
the
representation must be decided by an
authority higher that the one who gave
the entry, otherwise the likelihood is that
the representation will be summarily
rejected without adequate consideration
as it would be an appeal from Caesar to
Caesar. All this would be conductive to
fairness and transparency in public
administration, and would result in
fairness to public servants. The State must
be a model employer, and must act fairly
towards its employees. Only then would
good governance be possible."
1406 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

43. At the end of judgment, the
Hon'ble Supreme Court directed for
communication of the entry to the
concerned appellant within a period of
two months with liberty to make
representation against the said entry with
further direction to decide the same within
further two months thereafter and if the
authorities upgrade the entry of the
appellant then the opposite parties shall
consider
him
for
promotion
retrospectively
by
the
Departmental
Promotion Committee (DPC) within three
months thereafter and if the appellant gets
selected for promotion retrospectively, he
should be given higher pension with
arrears of pay and interest @ 8% per
annum till the date of payment.

44. In State of Uttar Pradesh there
are statuary rules regarding disposal of
representations made against the adverse
Annual Confidential Reports and allied
matters namely U. P. Government
Servants
(Disposal
of
the
representation against adverse annual
confidential reports & allied matters)
Rules, 1995 which provide a very strict
time frame for disposal of representation
made
against
the
adverse
Annual
Confidential Reports and Rule 5 of the
said Rules further provides that where an
adverse report is not communicated or a
representation against an adverse report
has not been disposed of in accordance
with Rule 4, such report shall not be
treated as adverse for the purposes of
promotion, crossing of Efficiency Bar and
other service matters of the Government
Servant concerned. As per the law laid
down by the Hon'ble Apex Court in the
case
of
Dev
Dutt
(Supra)
every
report/entry (whether poor, fair, average,
good or very good) is required to be
communicated
to
the
concerned
government servant in order to enable him
to make representation for its upgradation.

45. We have also examined the
Government Order dated 7th May, 1981,
relied upon by Sri Shreesh Kumar,
learned
counsel
for
the
claimantrespondents; we do not agree with the
submissions as the said Government
Order is not applicable in the facts of
present cases, as it has been provided
therein that if adverse remarks are
expunged by competent authority on
representation of an employee, then there
is no justification for awarding fresh
remarks as the entry in the character roll
can be made by the same officer who had
seen the work of the subordinate officer
for a minimum and continuous period of
three months. The cases at hand are
neither the case of wrongful recording of
the entry by the officer and nor that the
same has been decided to be expunged by
the competent authority. In the present
case, it is the Tribunal which issued
directions
for
not
taking
into
consideration the grade given by the
reviewing and accepting authority as no
reasons have been recorded by the
concerned authority.

46. This Court is of the view that the
learned Tribunal cannot take up the role
of the reviewing or accepting authority
and cannot direct the authorities to take
into consideration the views recorded by
the Reporting Officer ignoring the entry
recorded by the Reviewing or Accepting
Authority. While setting aside entry given
by
the
Reviewing
and
Accepting
Authority, it was incumbent upon the
learned Tribunal to remand the matter to
the concerned authority with the direction
to
act
in
accordance
with
law.
3 All] State of U.P. V. N.B.Singh Advocate
1407

47. On the basis of above analysis
and after considering all the facts and
circumstances of the case as well as the
legal position, we hereby allow all the
writ petitions and quash the judgment and
order of the learned Tribunal dated
28.7.2009 as well as all the other
impugned judgments of learned Tribunal
and direct the State Government to
communicate the entries to the concerned
government servants with liberty to them
to make representation to the higher
authorities within period of two months,
which would consider and decide the
same in accordance with law within a
further period of two months and
thereafter follow up action would be taken
by the competent authorities within period
of further two months in accordance with
law.

48. Considering the background of
present case, we hereby direct the Chief
Secretary to State Government of U.P. to
issue appropriate Government Order/
Circular for communication of all the
entries (whether poor, fair, average, good
or very good) to all the state employees as
per dictum of Hon'ble Supreme Court, as
laid down in paras 36 & 37 of case of Dev
Dutt vs. Union of India, (2008) 8 SCC
725, with a further provision for making
representation to the higher authorities
and if necessary, appropriate amendment
be made in U. P. Government Servants
(Disposal of the representation against
adverse annual confidential reports &
allied matters) Rules, 1995.

49. All the Writ Petitions stand
allowed accordingly.

50. Registrar of this Court is
directed to transmit a copy of this
judgment & order to the Chief Secretary
to State Government of U.P, Lucknow for
its necessary compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.
THE HON'BLE S. V. SINGH RATHORE,J.

Contempt No. - 634 of 2001

State of U.P.

 ...Petitioner
Versus
N.B.Singh Advocate
 ...Respondent

Counsel for the Petitioner:
Govt. Advocate (Reference)

Counsel for the Respondents:
Sri G.K. Mehrotra
Sri N.S. Chauhan

Contempt of Court Act-1971-Section 2
(a)-criminal
contempt-containing
a
practicing
lawyer-forcibly
entered
in
chamber
of
A.D.J.-abusing
by
cost
"Chirkut", "Chorkatai" etc. as to how
succession
application
dismissed
in
default-notice
issued
2011-No
unconditional apology tendered at first
opportunity-can not be claimed as a
matter of right-considering grown age of
60 years-apart from 13 years previous
incident-even conduct shows lack of
honest
repentance,
bona
fide
unconditional apology cannot be allowed
unpunished-fine
of
Rs.
2000/-would
meet end of justice

Held: Para 12 and 13

Considering
the
language
which
contemnor has used in the matter and
also the fact that the incident, the
behaviour and the utterances have not
been disputed, we have no hesitation but
to hold that the contemnor Sri N.B. Singh
is guilty of committing criminal contempt
of this Court.