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TMI Blog1970 (9) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... his attaining the age of 55 years. 3. The appellant, an electrical engineer, began his career in the Simla Electricity Supply Undertaking and worked there from 1934 to 1949. In 1949, he was appointed as a Project Officer in the Central Electricity Commission, now designated the Central Water and Power Commission (Power Wing). He was confirmed in that post in 1950 and later on was promoted to the post of a director, in which post he was working since 1955. He was confirmed in that post by an order, dated April 15, 1963 with retrospective effect from August 5, 1960. 4. By a communication dated September 16, 1965 he was informed of an adverse entry in the annual confidential report for the year 1964. The entry reads as follows : ...A 'Problem Director' in that it falls to the inevitable lot of some member to have him under his charge and manage as far as practicable. . . ...I agree with the above even though the officer is intelligent and capable of good work if he wishes to apply himself wholeheartedly. By another communication dated July 7, 1966 the appellant was informed that an adverse entry had been made in his confidential re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such invalid reports, was also invalid; (4) that making an adverse entry which resulted in withholding promotion to him amounted to a penalty; therefore, an adverse entry which had such a result would be governed by Article 311 and could not be made unless before making it the concerned Government servant was given a reasonable opportunity of being heard; (5) that, in any event, making such an entry without first holding a departmental inquiry and heating such a Government servant was contrary to natural justice; (6) that his work as a director was satisfactory, that the said entries were contrary to facts and that no reasonable person would have arrived at such adverse conclusions as recorded in the entries; (7) that the said entries were made mala fide; and (8) that the higher posts to which he was eligible were promotion and not selection posts at the relevant time, that they were made selection posts only in November 1965, and therefore, being the only permanent director amongst all the rest of the directors, he was entitled by his seniority to the higher post in preference to others. Even assuming that those posts were at the relevant time selection posts, he being a perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the officer concerned, his efficiency, ability, initiative or lack of it etc. and not a judgment with reference to any specific incident. Rule 7 in express terms provides that an adverse entry relating to a specific incident should not ordinarily find place in a character roll, unless, in the course of departmental proceedings a specific punishment such as censure has been awarded on the basis of such an incident. Where, however, a reporting officer feels that though the matter is not important enough to call for departmental proceedings, it is important enough to be mentioned specifically in the confidential report, he should, before making such an entry, satisfy himself that his own conclusion has been arrived at only after a reasonable opportunity has been given to the officer reported to present his case relating to the incident. The rule also provides that while communicating adverse remarks to the officer concerned the substance of such remarks and not their actual wordings need be conveyed. 12. On March 3, 1961 an office order was issued by the Commission which superseded all instructions issued previously on the subject of maintenance of confidential repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings are instituted as a result of such an incident and a formal punishment, such as censure, is awarded, a copy of the order of such punishment should invariably be placed in the confidential record of the Government servant. 13. These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case the officer making the order has to give a reasonable opportunity to the Government servant to present his case. The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing his side of the case and relying on the said reports only overlooked his right to promotion. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which could not be inflicted on him without a departmental inquiry. The second was that in any case Aswath ought not to have been raised to the higher post as allegations of financial irregularities were outstanding against him in consequence of which he resigned on August 1, 1965 and left for the United States of America. 16. The confidential report in respect of the appellant for the year 1964 was prepared on March 18, 1965. It was, no doubt, released to the appellant on September 16, 1965. But the Promotion Committee met in May 1964 and recommended Aswath for the post of Director (Selection Grade). Aswath was promoted to that post in December 1964. Obviously, the adverse entry for the year 1964 was not and could not be before that Committee. If at all the Committee declined to recommend the appellant's name because of adverse confidential reports, such reports could only be for the earlier years. The record shows that confidential reports for 1955, 1958 and 1959 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant also cannot challenge his non-promotion on the ground of seniority alone. It appears that the post of a Member was declared to be a selection post by the President as early as 1952, That decision is evidenced by the letter dated March 15, 1952, Appendix III to the counter-affidavit of the respondents in Writ Petition No. 608/D of 1966. By rules made by the President under Article 309, dated November 6, 1965, the post of the Member along with certain other posts was once again declared to be a selection post. The respondents' counter-affidavit clearly affirms that the post was a selection post and that when Aswath was appointed to that post in December 1964. the selection made from amongst the candidates was on an all India basis and not on the footing that the post was one where appointment was to be made on the basis of seniority in the Department alone. The appellant has not shown that the statement in the said letter of March 15, 1952 that the President had declared the post of Member a selection post not correct or that that declaration was not under Article 309. For such a challenge the burden of proof was upon him, a burden which he has not discharged. We are, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, all the incidents on which he relied upon to prove his case of mala fides. The allegations collected in that exhibit briefly stated are as follows : (i) that he was declared unfit for promotion to favour Aswath in spite of a warning having been given to him for financial irregularities, that the said Aswath resigned and left for the U.S.A. as soon as the appellant took resort to the court and that some higher authorities were also involved in those irregularities; (2) that though the Promotion Committee met in 1963 no promotions were recommended; that this was presumably done because Aswath could not then be promoted on account of the said warning; (3) that there was no adverse confidential report against the appellant for 1963; therefore, when the Promotion Committee met in 1964, his grading could not be reduced. Yet, he was superseded, in spite of his being the only permanent director, by three officers who had not yet been confirmed as directors. Presumably he was declared unfit for promotion as the said Aswath did not get a grading higher than good ; that the post of Member was filled in by direct recruitment and not by promotion presumably because the Promotion C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations made under Article 320 of the Constitution the appellant's case for promotion had not to be placed either before the Promotion Committee or the Public Service Commission. The President's order declaring the superior posts for which the appellant was eligible as selection posts was made months after the selection by those bodies. The said posts not being selection posts then, if the appellant was to be denied promotion a departmental enquiry was necessary under Rule 16 of the Central Civil Services Rules, 1965; and (13) that while the present writ petitions, were still pending, he was asked to vacate the premises occupied by him and the allotment thereof in his favour was cancelled. 23. In the counter-affidavit filed by the Under Secretary to the Ministry of Irrigation and Power it is denied that Aswath was promoted to the post of the Member, the respondents' case being that the post was a selection post and Aswath was appointed in that post on the basis of an all India selection by the Union Public Service Commission. The selection was made on merits with due regard to seniority and not seniority alone, and the appellant was not appointed to that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would cast any doubt that the members of the Promotion Committee did not make their recommendations on the basis of comparative merits of the candidates before them, whose records of service were before the Committee. As regards the allegation about the transfer orders, the respondents' reply was that they were made according to the administrative exigencies. There is no evidence on record to show that they were actuated by any malice or any such other motive. It may be that the appellant might have felt galling to have to work under Aswath after Aswath had been appointed to the higher post. It is possible to take the view that such a position should, if possible, have been avoided. But the fact that the appellant would have to work under Aswath by itself cannot necessarily mean that that particular transfer order was made mala fide. Allegation (7) is again sheer conjecture. Further, it is founded on an assumption that there were failures on the part of the said Venugopalan and that an attempt was made to shift those failures on to the appellant. Regarding the case of Dhawan, it was conceded that in 1958 the appellant had asked for a disciplinary inquiry against that office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing to show that the reporting officer and the reviewing authority, who were responsible for the confidential reports relating to the appellant, were members of the Promotion Committee or were in any event responsible for the appellant not having been recommended. The last allegation that the demand from him of the premises allotted to him was made because of animus against him has no relevance to the case of mala fides, as that demand must have been made in the usual course after the order of compulsory retirement was passed. Obviously, he could not be allowed to retain possession of those promises once be was made to retire from service. 24. As earlier stated, some of the allegations as to mala fides are matters of conjectures and speculation and some are vague in the sense that they do not specify who the particular officers were who mala fide made adverse entries against him, as, during the years 1955 to 1965 there were various officers who as part of their duty had to make assessment of the appellant's work and record such assessment in his confidential reports. Reading the material on record one cannot help forming an impression that the appellant had entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 56 was served on the appellant is not in dispute. In Union of India v. Col J.N. Sinha (1970)IILLJ284SC . this Court stated that F.R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states : If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. 26. The appellant relied on Moti Ram Deka v. General Manager, N.E.F. Railways [1964] 5 S.C.R. 587. where Rules 148(3) and 149(3) of the Indian Railway Establishment Code were held to contravene Article 311(2), and therefore, invalid. That decision cannot apply to the present case as the rules there in question dealt with the right to terminate service on notice of a prescribed period. The Court there held that a rule cannot confer on the Railway administration power to terminate service while at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years. In their reply-affidavit, dated July 10, 1967, in W.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellant's entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F.R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory as he claimed it was, there may have been other relevant factors, such as the history of the appellant's entire service and confidential reports throughout the period of his service, u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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