. THE TRIAL JUDGE IS REALLY "ON TRIAL"

4.1 Before referring to what really goes on at our trial Courts, it is necessary to have regard to what is required of a trial Judge. We can state without contradiction, some of the qualities we desire in our trial Judges. It is universally accepted that a trial Judge ought to be neutral and detached. He must be kind and benign. He must have an omniscience and not subjective confidence. He must be quite familiar with the law and knowledgeable about human behaviour. He must have manifold "personality". It consists of, among others, independence, courtesy, patience, dignity, open mindedness, impartiality, thoroughness and decisiveness. Above all, he must have social consciousness. There may be some variations in "this personality" of the Judge from person to person, but whatever be the variations, the central core of agreed standard is that he should be neutral and impartial; calm and non-contentious umpire.

4.2 This central core of agreed standard is a must in every trial Judge, because, he has to dig out the nugget of truth through the clash of contradictions in our adversary system. He is primarily concerned about the justice, no matter to which side it may fall. In the quest for truth, it is therefore, necessary for him to be patient, dignified and courteous to litigants, witnesses, lawyers and others.

4.3 This prescribed role of the Judge for our adversary system must come to him by long experience and training. He has to fulfil the required expectations of all the participants in the Court drama, in which two sides in the Court are nearly equal in learning, though physically may be unequal. The Judge more often is called upon to resolve the conflict between the rival parties. But there are contradictions, power pressures from different directions. The pressures, which we consider, is not with an intention to influence his judgment but those that are inherent in our system.

JUDGE BATTERED :

4.4 The very nature of our trial procedures generates subtle force that works against the Judge and his efforts to be neutral and detached. The primary concern of the parties and their Counsel in the trial of a case is to win. The sole objective of the defence lawyer in a criminal trial is to obtain acquittal. He seeks acquittal not because his client is innocent, but he just wants an acquittal. He gets his practice only when he wins the case. Nobody engages a lawyer who always loses his case. Likewise, the Prosecutor wants only conviction. He wants the accused to be punished and his attitude and approach in the Court are accordingly oriented.

4.5 Each contesting lawyer seeks to secure success to his client. But the goal of winning by both the sides may be inconsistent with the quest for truth, which the Judge is required to pursue. The Judge has to guard himself against trickery and cunning to defeat the ends of justice. Ultimately, when one party loses, there would be a deep strain, mistrust and hostility. Thus, at every stage, the trial Judge is under attack, however much he makes sincere efforts to render justice.

4.6 The atmosphere of the Court in certain cases is charged with high tension. The lawyers sometimes have an aggressive outlook against the Judge with assaultive mood against their opponents. Even the Judge’s fairness is challenged when the ruling is given on any objection.

4.7 Indeed, in such a Court room drama, the Judge is really "on trial" and not the case on trial.

4.8 Trial Judges working under a charged atmosphere and constantly under a psychological pressure has been even judicially recognised.

 

 

4.9 In K.P. TIWARI v. STATE OF M.P.1 , the Supreme Court observed:

" . . . . . . . The lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks – more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive."

THE APPELLATE COURT :

4.10 Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions to correct the errors. The error may be of law or fact or of both. To err is human. There cannot be an exception to a Judge. As wisely put by a jurist "a Judge who has not committed any error is yet to be born."

4.11 Justice Felix Frankfurter2 rightly commented:

"Judges are men, not disembodied spirits. Of course, a judge is not free from preferences or, if you will, biases."

4.12 Justice Cardozo3 said:

_______________________________________________________________

1. 1994 Supp (1) SCC 540.

2. Some observations of Felix Frankfurter,J. On the "Nature of Judicial Process of Supreme Court Litigation", 98 Proceedings AM Phil Society 233 (1954).

3. The Nature of the Judicial Process, Benjamin, N. Cardozo pp. 168-69.

 

 

"The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. That is an ideal of objective truth toward which every system of jurisprudence tends . . . . . It has a lofty sound; it is well and finely said; but it can never be more than partly true."

4.13 In deciding the appeal, the Appellate Court is not approaching the case as if for the first time. The raw materials for the Appellate Court are already collected, assembled and focussed unlike in the Trial Court. The Appellate Court hears only the oral arguments in a tension free atmosphere. The Appellate Court has plenty of time to come to conclusion. There is enough time for the Appellate Court to think and re-think on any legal issue. The Appellate Court could make research and go on editing its draft judgment any number of times. The decision-making may be prolonged and graduated. There is a qualitative difference in the variety, novelty and method in the decision-making by the Appellate Court. If the Appellate Bench consists of more than one Judge, they could share their views and labour.

4.14 Apart from that, unlike in the Trial Court, the Appellate Court will have substantial contribution from the well-prepared lawyers. The assistance given to the Appellate Court generally is far better than the assistance given to the Trial Court.

4.15 It is true that, the Appellate Court has as much power as that of the Trial Court in deciding the matter. It does not mean that the Appellate Court should find fault with the Trial Judge in each and every matter of the decision making. It also does not mean that the Appellate Court should treat the Trial Judge with little respect. The Appellate Court dealing with the matter must be conscious and controlled with deference to the decision of the lower Court.

4.16 We rely upon Appellate Court to correct errors. But it does not carry an implication that the Appellate Court is wiser.

4.17 It is therefore not proper for the Appellate Court or Revisional Court to make derogatory remarks against Trial Judge.

4.18 IN BRAJ KISHORE THAKUR v. UNION OF INDIA AND OTHERS4, K.T. THOMAS, J. While deprecating the caustic and severe censure made by the Single Judge of the Patna High Court against the Senior District and Sessions Judge of Bihar Judicial Service, observed:

"Judicial restraint is a virtue. A virtue which shall be concomitant of every judicial disposition. It is an attribute of a Judge, which he is obliged to keep refurbished from time to time, particularly while dealing with matters before him whether in exercise of appellate or revisional or other supervisory jurisdiction. Higher Courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors, which could possibly have crept in the findings or orders of Courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is well to remember the words of a jurist that "a Judge who has not committed any error is yet to be born."

 

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4. (1997) 4 SCC 65, at 66 and 70.

 

The learned Judge continued:

"No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher Courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not enhanced by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order, Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary."

4.19 In A.M. MATHUR v. PRAMOD KUMAR GUPTA5, Shetty J., although in a different context, said:

"Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the Court as well as to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect, when these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.

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5. (1990) 2 SCC 533 at 539.

The Judge’s Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of Counsel, parties or witnesses. We concede that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct."

4.20 In STATE OF RAJASTHAN v. PRAKASH CHAND AND OTHERS6, the present Chief Justice Dr. A.S. Anand, J. (as he then was), deprecating the tendency of certain Judges in making disparaging and derogatory remarks in intemperate language, observed:

"The foundation of our system which is based on the independence and impartiality of those who man it, will be shaken if disparaging and derogatory remarks are permitted to be made against Brother Judges with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from outside forces but also from those who are an integral part of the system. Dangers from within have much larger and greater potential for harm than dangers from outside. We alone in the judicial family can guard against such dangers from within.

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6. (1998) 1 SCC 1.

 

One of the surer means to achieve it is by the Judges remaining circumspect and self-disciplined in the discharge of their judicial functions."

4.21 In R.C. SOOD v. HIGH COURT OF JUDICATURE AT RAJASTHAN7 B.N. Kirpal, J. after tracing the history of the case of the Petitioner, who was a Senior District Judge belonging to Rajasthan Judiciary, found fault with the Rajasthan High Court for taking a decision to ruin the Petitioner’s judicial career. The learned Judge continued:

" . . . . . . . . We have no doubt that the action taken by the Court was not bona fide and amounts to victimisation. This is certainly not expected from a judicial forum, least of all the High Court, which is expected to discharge its administrative duties as fairly and objectively as it is required to discharge its judicial functions."

xxx xxx xxx

xxx xxx xxx

"The High Court acted in the manner which can only be termed as arbitrary and unwarranted, to say the least."

4.22 So stating, the entire disciplinary proceedings initiated by the High Court against the Petitioner were quashed with the exemplary cost of Rs.20,000/- in favour of the Petitioner.

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7. AIR 1999 SC 707.

 

I. OUR VIEWS :

4.23 From the representations received from the Judicial Officers all over the country, it becomes clear that they are working under great stress without proper appreciation of their problems by the High Court. It is necessary to emphasise that the Trial Judges are not mechanical scales or computers. They being human, vary in their respective qualities of intelligence, perceptiveness and attentiveness and mental and emotional characteristics. The High Court while reviewing their decisions must bring to bear these aspects before making any criticism against them.

4.24 It may be stated that the dynamics of judicial process of the Trial Judges and the Appellate Judges are quite distinct and different. The task of writing judgment in the appeal is nothing compared with the duty of conducting trial with procedural fairness of the adversary system.

4.25 The Trial Judges therefore deserve more sympathetic consideration. They should be treated with dignity and honour. They should not be openly criticised by using intemperate language or casting aspersions on their judicial functioning.

4.26 In this context, we are constrained to refer to a pernicious practice which has been specifically brought to our attention by the All India Judges’ Association in their representation and also during the oral hearing.

4.27 It is said that some Judges particularly of some High Courts while hearing appeals, writ petitions, or Revision petitions against the orders and judgments of the Trial Court, used to summon the Trial Judges to the High Court to explain in open Court as to why they have written the judgments in that manner. The Trial Judges would be required to be present at their own cost before the learned Judges in the open Court in the midst of the Bar Members and public to explain their judgments. It is a great embarrassment and humiliation to the Trial Judges. If we may say so, with all respect, such practice is unknown to our accepted norms and procedure, if not an abuse of the power. We trust and hope that those learned Judges would soon discontinue that practice in the interest of maintaining harmony in the judicial fraternity and promoting public confidence in the administration of justice.

II. ANNUAL CONFIDENTIAL REPORTS / SELF ASSESSMENT REPORTS:

4.28 Annual Confidential Reports of the Judicial Officers prepared and maintained by the High Courts have given rise to many complaints from the Judicial Officers. It is said that in certain cases, confidential reports are based more on information received from the Bar members or third parties, which is in strict legal parlance "hearsay evidence". It may be stated that the judges who are honest and strict and who adhere to rules of procedure do not always find favourable response from the Bar Members.

4.29 The Commission considers that the procedure prescribed for writing the Confidential Report for All India Administrative Service is a better one and more transparent. This procedure is also adopted by some of the State Governments. The All India Service (Confidential Rolls) Rules, 1970 and the FORM I prescribed thereunder are enclosed as ANNEXURES ‘A’ & ‘B’ to this Chapter for ready reference.

4.30 It may be seen that Form I contains six parts:

Part - I for filling up Personal Data.

Part - II for self assessment by the Officer concerned.

Part - III for Reporting Authority.

Part - IV General.

Part - V Remarks of the Reviewing Authority.

Part - VI Remarks of the Accepting Authority.

4.31 We request all High Courts to adopt this procedure with minor modifications here and there, if necessary, if they have not yet adopted the same.

III. EASY ACCESSIBILITY:

4.32 Any Judicial Officer with any problem should have easy access not only to the Registrar General of the High Court but also to the concerned Administrative Judge / Chief Justice. The present tendency of certain Judges and Chief Justices to avoid audience to Judicial Officers on the ground that they need not bother them is not desirable. In some cases, even minor problem might be greatly upsetting the mind of the Judge concerned and the High Court should be ready to apply a healing balm to any hurt or injury of the Officer, in order to keep up the health and morale of the Officers.

IV. DISPENSERS OF JUSTICE SHOULD NOT BE DENIED JUSTICE IN THEIR OWN CASES:

4.33 "Nothing rankles more in a human heart than a brooding sense of injustice." It was said in connection with citizens at large as well as general litigants. But judicial officers cannot be an exception to this maxim.

4.34 Some times, the Judges of the Lower Courts are aggrieved by the decisions taken by the High Court on the administrative side and they approach the High Court for relief on the judicial side. It is complained that their writ petitions are admitted but kept in cold storage. This would be practically denying justice to judicial officers.

4.35 The Commission suggests that the writ petitions of the judicial officers should be expeditiously disposed of preferably by a bench presided over by the Chief Justice of the High Court. If the Chief Justice is disabled to hear such cases, the seniormost Judge may be requested to preside over such bench. This practice will give some kind of confidence to the aggrieved judicial officers.

V. SCRUTINY ON THE EVE OF ATTAINING 58 YEARS FOR EXTENDING BENEFIT OF TWO YEARS SERVICE

4.36 The Supreme Court in the Review judgment in the All India Judges’ Association case8 observed that:

Para (30) "The benefit of the increase of the retirement age to 60 years shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers’ past record of service, character rolls, quality of judgments and other relevant matters.

Para (31) "The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the

_______________________________________________________________

8. 1993(4)SCC 288 at 305,306.

age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement at the earlier stage/s under the respective Service Rules

( Para 32) "The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 58 years does introduce a change in the service condition of the existing personnel. There may be judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such cases, the concerned officers should intimate in writing their desire to retire at the age of 58 years well in advance and in any case before they attain the age of 57 years. Those who do not do so will be deemed to have exercised their option to continue in service till they attain 60 years of age subject to the liability of being retired compulsorily at the age of 58 years according to the procedure for compulsory retirement laid down in the Service Rules."

4.37 The experience of the Judicial Officers in every State is that the above system is not put to proper working. On gathering the preliminary information in that regard, the Commission has specifically incorporated a Question No.48 in the general Questionnaire as follows:

"Q.48. The Supreme Court has observed that while the superannuation age of every Judicial Officer shall stand extended upto 60 years, the benefit of the extended superannuation age from 58 to 60 shall be given to a Judicial Officer found fit and eligible by the respective High Court after assessing and evaluating the record of the Judicial Officer in accordance with the procedure for compulsory retirement under the Service Rules before he attains 58 years.

"There are views for and against the said practice. Let the Commission have your considered opinion on the said matter."

4.38 The responses received from the respondents are not worthy of mentioning. We can only state that the methodology required to be followed by the High Court for reviewing the cases of Judicial Officers at the age of 58 for the purpose of giving them the benefit of two years of service has affected the morale of the Judicial Officers. They are near unanimous that the procedure should be discontinued.

4.39 It will be seen that the Supreme Court has observed that the benefit of the increase of the retirement age at 60 years shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit must be extended only to those who have a potential for continued useful service. This potential for continued utility to the judicial service shall be assessed and evaluated by the High Court and the evaluation shall be made on the basis of the Judicial Officers' past record of service, character rolls, quality of judgment and other relevant matters.

4.40 These observations are followed by the directions to the High Court to review the cases of Judicial Officers who are about to attain the age of 58 years by following the procedure for compulsory retirement as laid down in the respective Service Rules for compulsory retirement. The next direction is that those who are not found fit and eligible by that review should be compulsorily retired at the age of 58.

4.41 It was further observed that the assessment of the Officers by following the procedure for compulsory retirement is only for entitlement to the benefit of the increased age of superannuation from 58 to 60 years and this would be without prejudice to or in addition to the assessment to be undertaken for compulsory retirement at the earlier stages under the respective Service Rules.

4.42 It was also observed that those Judicial officers who are not desirous of availing the benefit of the enhanced superannuation age may opt for retirement at the age of 58 years by intimating in advance their desire to retire at the age of 58 years and in any case before they attain the age of 57 years.

4.43 With all humility, if we may say so, the Apex Court 's directions to review the cases of Judicial Officers at the age of 58 for giving them the benefit of two years, is uncalled for. You cannot assess the suitability of Officers for giving the benefit of two years within the age of superannuation, in addition to the assessment to be undertaken for compulsory retirement at the earlier stages under the relevant Service Rules. Such a review may be necessary if extension of two years is to be given after the age of retirement. Within the age of retirement, every Officer has a right to continue in service till he attains the age of superannuation unless he is removed by the procedure known to law. That procedure should not be linked for giving the benefit of the extended age of superannuation. It has to be independently followed under the respective Rules.

4.44 Secondly, it may be noted that the review of cases at the age of 58 years for compulsory retirement is not obligatory in respect of every Judicial Officer. It applies only to those who express their desire to continue beyond 58 years. Those who do not want to continue beyond 58 years may simply intimate the High Court at the age of 57 years stating that they do not want to continue beyond 58 years. Then, they will escape the procedure for compulsory retirement by this scheme. They could honourably retire in the sense without being compulsorily retired at the age of 58, although their records may not be so good as that of those who ventuer to ask for two more years of service.

4.45 We may hasten to add that we are equally concerned in promoting efficiency in the administration of justice and to keep the streams of justice pure and unpolluted. With this object in view and also bearing in mind the purpose underlying the directions of the Supreme Court, we have recommended the review of all cases of Judicial Officers by a Committee of Judges headed by the Chief Justice. The review should not be one time affair. It should be periodical and the Committee should be continuing Committee. The review of cases shall be undertaken when the Officers are about to attain the age of 50, 55 and 60 years and those who are considered as dead wood should be weeded out in public interest. This procedure of compulsory retirement should be independent of and unconnected with the benefit of giving the upward revision of superannuation age.

4.46 The draft Service Rules in this regard for all High Courts to make has been prepared by the Commission and annexed elsewhere to this Report.

 

OUR RECOMMENDATIONS :

4.47 Many of the High Courts have incorporated the directions of the Supreme Court in their respective Service Rules, including the provision for compulsory retirement at the age of 58 years, although the retirement age has been fixed at 60.

 

4.48 We recommend to the High Courts to supersede such Rules and to frame a Rule specifying only the age of retirement. When such a rule is framed without any further conditions, the directions of the Supreme Court to review the cases at 58 will not be applicable, as observed by the Supreme Court in RAJAT BARAN ROY AND OTHERS v. STATE OF WEST BENGAL AND OTHERS9 as follows:

"In view of this observation, it is clear that the direction issued as above, would cease to exist when appropriate rule enhancing the retirement age of the judicial officers to 60 years is made. Consequently, the rider to the direction issued by the Court also ceases to operate, being coterminus with the direction. After the directions in the 1993 case, in the case of such States which had framed rules consequent upon which the members of the subordinate judiciary in those States became entitled to continue in service till the age of 60 years, it will have to be held that the enhancement has come into force by virtue of such rules framed. In other words, the enhancement of retirement age in those States will be dehors the directions of this Court and will be subject only to the terms of the rules applicable. In such cases, in our opinion, the pre-retirement assessment will not be applicable unless the same is specifically provided under the rules."

 

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9. (1999) 4 SCC 235 at 240.

 

ANNEXURE ‘A’

ALL INDIA SERVICES (CONFIDENTIAL ROLLS) RULES, 1970

In exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act, 1951 (61 of 1951), the Central Government, after consultation with the Governments of the States concerned, hereby makes the following rules, namely:-

1. Short title, commencement and application,-

(1) These rules may be called the All India Services (Confidential Rolls) Rules, 1970.

(2) They shall come into force on the date of their publication in the Official Gazette.

(3) They shall apply to the writing and the maintenance of the confidential reports on the members of the Service.

2. Definition,- In these rules, unless the context otherwise requires:-

21(a) "accepting authority" means such authority or authorities supervising the performance of the reviewing authority as may be specifically empowered in this behalf by the Government.

2(aa) ‘confidential report’ means the confidential report referred to in rule 5;

22(b) ‘confidential roll’ means the compilation of the confidential

_______________________________________________________________

1. Substituted vide DP&T Notification No.22012/4/87 AIS (III) dated 8-12-1987.

2. Inserted / Substituted vide Notification No. 34/4/71- AIS (III), Vol. I-A dated 11-9-73.

reports written on a member of the Service and includes such

other documents as may be specified by the Central Government, by general or special order, in this behalf;

22(c) ‘Government’ means -

(i) in the case of a member of the Service Serving in connection with the affairs of the Union or of a Union Territory, or serving under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government, or serving under a local body set up by an Act of Parliament, or serving under an international organisation, an autonomous body not controlled by the Central Government or a State Government, or a private body, the Central Government;

(ii) in the case of a member of the Service serving in connection with the affairs of a State, or serving under a company association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or serving under a local body set up by an Act of the Legislature of a state, the Government of that State;

2(d) ‘member of the Service’ means a member of an All-India Service as defined in section 2 of the All India Service Act, 1951 (61 of 1951);

23(e) "reporting authority" means such authority or authorities

 

_______________________________________________________________
2. Inserted / Substituted vide Notification No. 34/4/71- AIS (III), Vol. I-A dated 11-9-73.

3. Substituted vide DP&T Notification No.22012/4/87 AIS (III) dated 8/12/87.

supervising the performance of the member of the Service reported upon as may be specifically empowered in this behalf by the Government;

24(f) "reviewing authority" means authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government.

2(g) ‘State’ means a State specified in the First Schedule to the Constitution and includes a Union Territory ;

25(h) ‘State Government’ means the Government of the State on whose cadre the member of the Service is borne and in relation to a member of an All India Service borne on a Joint Cadre.

6Explanation – "The authority or authorities supervising the performances" referred to in clauses (a), (e) and (f) shall not necessarily mean an authority or authorities belonging to the same Service to which the reviewing or the reporting authority, as the cases may be, belongs.

Government of India ’s Orders:

7In pursuance of clause (b) of rule 2 of the All India Service (Confidential Rolls) Rules, 1970, the Central Government hereby specifies the following documents to be included in the confidential roll, as defined in that clause namely:-

(i) Letters of appreciation / Resolution issued by the Government

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4. Substituted vide Notification No.22012/4/87 AIS (III) dated 8/12/87.

5. Substituted vide DP&AR Notification No.13/4/71-AIS-I, dated 11/1/72.

6. Inserted vide DP&T Notification No.22012/4/87 AIS (III) dt. 8-12-87.

7. [F.No.11059/16/79-AIS(III), dated 25-5-80].

to a member of the All India Service; record about any medals, award etc. awarded to him in recognition of his services.

(ii) Copy of order imposing on the member of the Service any of the penalties specified in the All India Services (Discipline and Appeal) Rules, 1969.

7(a) Copy of the communication addressed to a member of the Service warning him or conveying the displeasure or reprimand by the Reporting Authority / Reviewing Authority / Accepting Authority in which a reference is made in the Confidential Report for the relevant period.

(b) Copy of the communication addressed to a member of the Service conveying warning, or displeasure, or reprimand, of the Government.

(iii) Record of final result of the inquiry into the charges or allegations against a member of the Service; mentioned in his confidential report.

(iv) Copies of certificates regarding languages known by the member of the Service.

(v) Copies of certificates regarding educational qualifications acquired by the member of the service after entering the service.

8(vi) Copies of :-

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7. Amended vide DP&T Notification No.11059/8/86 AIS (III) dated 21-1-1987.

  1. Amended vide DP&T order No.11059/8/86 AIS III dated 5-1-1989. Amended

vide DP&T order No.11059/18/85-AIS (III) dated 8-12-1987.

(a) Certificates and 9marksheets regarding training (excluding certificates for one-week training programmes) received by a member of the Service;

and

(b) Evaluation Sheets in respect of training programmes sponsored by Government of India or duration of four weeks or more

(vii) Record about any books, articles and other publications brought out by a member of the Service or for the publication of which he may be responsible.

Note 1 - Mention of items (v) and (vi) may also be made on the first page of the C.R. Dossier in the Columns "Languages Known" and "Educational Qualification" respectively.

Note 2 - Details of the training under item (vii) may also be mentioned on the first page of the C.R. Dossier below the column "Educational Qualifications".

Note 3 - Information relating to item (viii) may be entered in a separate list to be kept in the C.R. Dossier. Copies of the articles, books and other publications need not be kept in the C.R. Dossier. No distinction is to be made between articles, books and other publications of a professional and those of a non-professional nature.

 

_______________________________________________________________

9. Amended vide order No. 11059 / 14 / 87-AIS III dated 11-9-1987.

 

3. Maintenance and custody of confidential rolls,-

(1) A confidential roll shall be maintained in respect of every member of the Service by the State Government as well as by the Central Government.

(2) The State Government as well as the Central Government may specify the manner in which the aforesaid confidential rolls shall be maintained and kept by it.

4. Form of the Confidential report,- The confidential report shall be written by the reporting authority in such form as may be specified by the Central Government.

Provided that the Government may make such additions in the form so specified as may be considered necessary or desirable by it to suit local conditions or requirements.

5. Confidential reports.- (1) A confidential report assessing the performances, character, conduct and qualities of every member of the Service shall be written for each financial year, or calendar year, as may be specified by the Government, (ordinarily within two months of) the close of the said year.

10,11[Provided that where a member of the Service is on deputation to an international organisation, confidential reports in respect of such member may be written-

(i) for the entire period of his tenure with the said organization even in a case where the period of such tenure exceeds one year; or

_______________________________________________________________

10. Inserted/substituted vide DP&AR Notification No. 8/6/72-AIS-III, dated 2-1-1975.

11. Inserted/substituted vide Notification No.34/4/71-AIS-III, Vol.I-A, dated 11-9-73.

 

(ii) for such shorter period as may be considered convenient or necessary by the reporting authority having regard to the circumstances of each case, ordinarily within three months of the close of the said period.]

[Provided further that a confidential report may not be written in such cases as may be specified by the Central Government, by general or special order.]

5(2) A confidential report shall also be written when either the reporting authority or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment of his charge of the post or ordinarily within one month thereafter.

[Provided that a confidential report may not be written in such cases as may be specified by the Central Government, by general or special order.]

5(3) Where more than one confidential reports are written on a member of the Service during the course of a financial year or a calendar year, as the case may be, each such report shall indicate the period to which it pertains.

5(4) Where the reporting authority has not seen, and the reviewing authority has seen, the performance of a member of the Service for at least three months during the period for which the confidential report is to be written, the Confidential report of any such member for any such period shall be written by the reviewing authority, and where, both the reporting authority and the reviewing authority have not seen, and the accepting authority has seen, the performance as aforesaid of any such member during any such period, the confidential report shall be written by the accepting authority.

5(5) Where the authority writing the Confidential report under sub-rule (2) or sub-rule (4) is a Government Servant, such report shall be written before he retires from service;

5(6) Where the reporting authority, the reviewing authority and the accepting authority have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, an entry to that effect shall be made in the confidential report for any such period by the Government.

12"5(7) Notwithstanding anything contained in sub-rules (1), (2) and (4), it shall not be competent for the reporting authority, the reviewing authority or the accepting authority, as the case may be, where the authority writing the confidential report is not a government servant, to write a confidential report after he demits office.

Explanation: For the purpose of this rule, Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was a Minister with the same or a different portfolio."

6. Review of the confidential report – (1) The confidential report shall be reviewed by the reviewing authority ordinarily within one month of its being written:

Provided that this requirement may be dispensed with in such cases as may be specified by the Government, by general or special order.

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

6(2) Where the report is written by the reviewing authority under sub-rule (4) of rule 5, or where the reviewing authority has not seen, and the accepting authority has seen, the performance of a member of the Service for at least three months during the period for which the confidential report is written, the confidential report of any such member for any such period shall be reviewed by the accepting authority, ordinarily within one month of its being written.

6(3) It shall not be competent for the reviewing authority, or the accepting authority, as the case may be, to review any such confidential report unless it has seen the performance of the member of the Service for at least three months during the period for which the report has been written, and in every such case an entry to that effect shall be made in the confidential report.

6(4) Notwithstanding anything contained in sub-rules (1) and (2), it shall not be competent for the reviewing authority or the accepting authority, as the case may be, to review any such confidential report-

(a) where the authority reviewing confidential report is a Government servant, after he retires from service, and

(b) in other cases, after he demits office.

12"Explanation: For the purpose of this rule, a Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was Minister with the same or a different portfolio".

6A. Acceptance of the confidential report- (1) The confidential report, after review, shall be accepted, with such modifications, as may be considered

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

 

necessary, and countersigned, by the accepting authority, ordinarily within one month of its review:

Provided that this requirement may be dispensed for, in such cases as may be specified by the Government, by general or special Order:

Provided further that where the accepting authority has not seen the performance of any member of the Service for at least three months during the period for which the confidential report has been written, it shall not be necessary for the accepting authority to accept any such report.

Note,- An entry to this effect shall be made in the confidential report.

6A (2) Notwithstanding anything contained in sub-rule (1), it shall not be competent for the accepting authority to accept and countersign any such confidential report-

(a) where the accepting authority is a Government servant, after he retires from service, and

(b) in other cases, after he demits office.

12"Explanation: For the purpose of this rule a Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was Minister with the same or a different portfolio".

6B. Cases in which the accepting authority writes or reviews the confidential report,- Notwithstanding anything contained in rule 5 or rule 6, where the accepting authority writes or reviews the confidential report of any

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

 

member of the Service, it shall not be further necessary to review or accept any such report.

7. Communication of the confidential report to the Central Government and the State Government,- A certified true copy of the confidential report shall be sent to the Central Government or the State Government or both to the Central Government and the State Government, according as the member of the Service is servicing in connection with the affairs of the State, on whose cadre he is borne, or the Union, or a State to which he has been deputed:

13Provided that, if the confidential report is written in a language other than Hindi or English, it shall be accompanied by an authentic certified translation in Hindi or English.

14"8. Communication of Adverse remarks,-

8(1) Where the Confidential report of a member of the service contains an adverse remark, it shall be communicated to him in writing together with a substance of the entire Confidential report by the Government or such other authority as may be specified by the Government ordinarily within two months of the receipt of the confidential report and a certificate to this effect shall be recorded in the Confidential report.

8(2) Where the reporting authority or the reviewing authority or the accepting authority records an adverse remark, he shall also record a note to the effect that the remark is an adverse remark:

_______________________________________________________________

13. Inserted vide Notification No. 8/5/72-AIS-III, dated 25-8-1973.

14. Substituted vide DP&T Notification No.11059 / 8 / 86-AIS-III dated 21-1-1987.

Provided that the question whether a particular remark recorded in the Confidential report of a member of the service is an adverse remark or not shall be decided by the Government.

Provided further that in the event of any difference of opinion between the Central Govt. and the Government of a State whether a particular remark is to be deemed an adverse remark or not, the opinion of the Central Government shall prevail.

Explanation: for the purpose of these rules an adverse remark means a remark which indicates the defects or deficiencies in the quality of work or performance or conduct of an officer, but does not include any word or words in the nature of counsel or advice to the officer".

9. Representation against adverse remarks,- A member of the Service may represent to the Government against the remark communicated to him under rule 8 within 45 days of the date of its receipt by him:

15Provided that the Government may entertain a representation within three months of the expiry of the said period if it is satisfied that the member of the service had sufficient cause for not submitting the representation in time.

10. Consideration of representation against adverse remarks,–

(1) The Government shall, and if it considers necessary, in consultation with the reporting authority, [the reviewing authority or the accepting authority], consider the representation made under rule 9 by a member of the Service and pass orders as far as possible within three months of the date of submission of the representation–

_______________________________________________________________

15. Substituted vide DP&T Notification No.11059 / 8 / 86-AIS-III dated 21-1-1987.

 

(a) rejecting the representation, or toning down the remark, or

(b) expunging the remark.

Provided that where an order toning down or expunging the remark is passed a copy of such order, and if the order is passed beyond twelve months after the close of the financial year calendar year, as the case may, be to which the remark pertains, the reasons therefor, together with the certified true copies of the representation made and the remarks of the reporting authority and the reviewing authority, shall be endorsed to the Central Government or the State Government or both to the Central Government and the State Government according as the member of the Service is serving in connection with the affairs of a State on whose cadre he is borne or the Union or a State to which he has been deputed.

16[ ] deleted.

(2) The order so passed on the representation shall be final and the member of the Service concerned shall be informed suitably.

10.A. General,– The Central Government may issue such instructions, not inconsistent with the provisions of these rules, as it may consider necessary, with regard to the writing of the confidential reports, the maintenance of the confidential rolls and the effect of the confidential reports on the conditions of service of a member of the service.

11. Interpretation,– Where any doubt arises as to the interpretation of any of the provisions of these rules, the matter shall be referred to the Central Government who shall decide the same.

_______________________________________________________________

16. Substituted vide No.34/4/71-AIS-III, Vol. I-A dated 11-9-1973.

 

Executive Instructions:

17FORM OF CONFIDENTIAL REPORT

[See Rule 4 of the All India Service (Confidential Rolls) Rules, 1970]

[Ministry of Home Affairs Notification No.36/1/69-AISD-III, dated 15-7-70].

 

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ANNEXURE ‘B’

 

Form 1

 

 

 

Confidential Report

for

Indian Administrative Service Officers

 

 

Junior Time Scale

Senior Time Scale

Selection Grade

 

 

 

Name of Officer _________________________________________________

Report for the year / period ending ____________________________________

 

 

 

Form 1

Confidential Report for Indian Administrative Service Officers

(Junior Time Scale, Senior Time Scale, Selection Grade)

Report for the year / period ending _____________________

PART – 1 PERSONAL DATA

(To be filled by the Administrative Section concerned of the Ministry/Department/Office)

1. Name of Officer

2. Cadre and Year of allotment

3. Date of Birth

4. Date of continuous appointment Date Grade

to present grade

5. Present post and date of appointment Date Grade

thereto

6. Period of absence from duty (on leave,

Training etc., during the year. If he has

Undergone training, please specify.)

7. Date of filing the Annual Property

Returns;

PART - II To be filled in by the Officer Reported upon

(Please read carefully the instructions given at the end of the form before filling the entries.)

1. Brief description of duties.

2. Please specify the quantitative / physical / financial targets / objectives set for yourself or that were set for you in respect of eight to ten items of work, in order of priority and your achievement against each target.

Targets Achievements

3.(a) Please state briefly the shortfalls with reference to the targets / objectives referred to in column 2. Please specify constraints, if any in achieving the targets.

(b) Please also indicate terms in which there have been significantly higher achievements and your contribution thereto.

PART - III To be filled in by the Reporting Authority

(Please read carefully the instructions given at the end of the form before filling the entries.)

A. NATURE AND QUALITY OF WORK

1. Please comment on Part II as filled out by the officer and specifically state whether you agree with the answers relating to targets and objectives, achievements and shortfalls. Also specify constraints, if any, in achieving the objectives.

2. Quality of output –

Please comment on the officer’s quality of performance having regard to standard of work and programme objectives, and constraints, if any.

3. Knowledge of sphere of work –

Please comment specifically on each of these : level of knowledge of functions, related instructions and their application.

B. ATTRIBUTES

1. Attitude to Work –

Please comment on the extent to which the officer is dedicated and motivated and on his / her willingness and initiative to learn and systematise his / her work.

2. Decision-making ability –

Please comment on the quality of decision-making and on ability to weigh pros and cons of alternatives.

3. Initiative –

Please comment on the capacity and resourcefulness of the officer in Handling unforeseen situations on his / her own and willingness to take additional responsibility and new areas of work.

4. Ability to inspire and motivate –

Please comment on the capacity of the officer to motivate, to obtain willing support by own conduct and capacity to inspire confidence.

5. Communication skill (written and oral) –

Please comment on the ability of the officer to communicate and on his / her ability to present arguments.

6. Inter-personal relations and team work –

Please comment on the quality of relationship with superiors, colleagues and subordinates, and on the ability to appreciate others point of view and take advice in the proper spirit. Please also comment on his / her capacity to work as a member of a team and to promote team spirit and optimise the output of the team.

7. Relations with the public –

Please comment on the officer’s accessibility to the public and responsiveness to their needs.

8. Attitude towards Scheduled Castes / Schedules Tribes / Weaker Sections of Society –

Please comment on his / her understanding of the problems of Scheduled Castes and Scheduled Tribes / Weaker Sections and willingness to deal with them.

C. ADDITIONAL ATTRIBUTES

(for officers of 12 years of service and above only)

1. Planning ability –

Please comment whether the officer anticipates problems, work needs, and plans accordingly and is able to provide for contingencies.

2. Supervisory ability –

Please comment on the officer’s ability relating to:

(i) proper assignment of tasks;

(ii) identification of proper personnel for performing the tasks;

(iii) guidance in the performance of tasks; and

(iv) review of performance.

3. Coordination ability –

Please comment on the extent to which the officer is able to achieve coordination in formulation and implementation of tasks and programmes by different functionaries involved.

4. Aptitude and Potential –

Please indicate three fields of work from amongst the following for possible specialisation and career development of the officer. Please mark 1,2,3 in three appropriate boxes.

1. Personnel Administration

.

2. Law and Order and Internal Security

.

3. Financial Administration

.

4. Agricultural and Rural Development

.

5. Social Services and Educational Administration

.

6. Planning

.

7. Economic and Commercial Administration

.

8. Industrial Administration

.

9. Any other field (Please specify).

.

5. Training –

Please give recommendations for training with a view to further improving the effectiveness and capabilities of the officer. (While specifying the areas of training, it is not necessary to confine to the fields referred to in column 4).

PART - IV GENERAL

1. State of health –

2. Integrity –

(Please see Note below the instructions)

3. General assessment –

Please give an overall assessment of the officer with reference to his / her strength and shortcomings and also by drawing attention to the qualities if any not covered by the entries above.

4. Grading –

(Outstanding / Very Good / Good / Average / Below Average)

(An officer should not be graded outstanding unless exceptional qualities and performance have been noticed; grounds for giving such a grading should be clearly brought out).

Place : Signature

Date : Name in block letters

Designation

(During the period of Report)

PART - V REMARKS OF THE REVIEWING AUTHORITY

1. Length of service under the Reviewing Authority.

2. Is the Reviewing Authority satisfied that the Reporting Authority has made his / her report with due care and attention and after taking into account all the relevant material?

3. Do you agree with the assessment of the officer given by the reporting authority?

(In case of disagreement, please specify the reasons;

Is there anything you wish to modify or add?)

4. General remarks with specific comments about the general remarks

 

given by the reporting authority and remarks about meritorious work of the officer including the grading.

5. Has the officer any special characteristics, and / or any abilities which would justify his / her selection for a special assignment or / out of turn promotion? If so, specify.

Place : Signature of the Reviewing Authority

Date : Name in block letters

Designation

(During the period of Report)

PART - VI REMARKS OF THE ACCEPTING AUTHORITY

(i.e. next superior authority)

 

Place : Signature of the Accepting Authority

Date : Name in block letters

Designation (During the period of Report)

 

 

 

 

 

INSTRUCTIONS

1. The Confidential Report is an important document. It provides the basic and vital input for assessing the performance of an officer and for his / her further advancement in his / her career. The officer reported upon, the Reporting Authority, the Reviewing and Accepting Authority should, therefore, undertake the duty of filling out the form with a high sense of responsibility.

2. Performance appraisal through Confidential Reports should be used as a tool for human resource development. Reporting Officers should realise that the objective is to develop an officer so that he / she realises his / her true potential. It is not meant to be a fault-finding process but a developmental one. The Reporting Officer and the Reviewing officer should not shy away from reporting shortcomings in performance, attitudes or overall personality of the officer reported upon.

3. The columns should be filled with due care and attention and after devoting adequate time. Any attempt to fill the report in a casual or superficial manner will be easily discernible to the higher authorities.

4. If the Reviewing Authority is satisfied that the Reporting Authority had made the report without due care and attention he shall record a remark to that effect in Part V Column 2. The Government shall enter the remarks in the Confidential Roll of the Reporting Authority.

5. Every answer shall be given in a narrative form. The space provided indicates, the desired length of the answer. Words and phrases should be chosen carefully and should accurately reflect the intention of the authority recording the answer. Please use unambiguous and simple language. Please do not use omnibus expressions like ‘outstanding’, ‘very good’. ‘Good’, ‘Average’, ‘below average’ while giving your comments against any of the attributes.

6. The Reporting Officer shall, in the beginning of the year set quantitative / physical / financial targets in consultation with each of the officers with respect to whom he is required to report upon. Performance appraisal should be a joint exercise between the officer reported upon and the Reporting Officer. The targets / goals shall be set at the commencement of the reporting year i.e. April, in the case of All India Service Officers. In the case of an officer taking up a new assignment in the course of the reporting year, such targets / goals shall be set at the time of assumption of the new assignment.

7. The targets should be clearly known and understood by both the officers concerned. While fixing the targets, priority should be assigned item-wise, taking into consideration the nature and the area of work and any special features that may be specific to the nature or the area of the work of the officer to be reported upon.

8. Although performance appraisal is a year-end exercise, in order that it may be a tool for human resource development, the Reporting Officer and the officer reported upon should meet during the course of the year at regular intervals to review the performance and to take necessary corrective steps.

9. It should be the endeavour of each appraiser to present the truest possible picture of the appraisee in regard to his / her performance, conduct, behaviour and potential.

10. Assessment should be confined to the appraisee’s performance during the period of report only.

 

11. Some posts of the same rank may be more exacting than others. The degree of stress and strain in any post may also vary from time to time. These facts should be borne in mind during appraisal and should be commented upon appropriately.

12. Aspects on which an appraisee is to be evaluated on different attributes are delineated below each column. The appraiser should deal with these and other aspects relevant to the attributes.

NOTE:

The following procedure should be followed in filling up the column relating to integrity:–

(i) If the Officer’s integrity is beyond doubt, it may be so stated.

(ii) If there is any doubt or suspicion, the column should be left blank and action taken as under:

(a) A separate secret note should be recorded and followed up. A copy of the note should also be sent together with the Confidential Report to the next superior Officer who will ensure that the follow up action is taken expeditiously. Where it is not possible either to certify the integrity or to record the secret note, the Reporting Officer should state either that he had not watched the officer’s work for sufficient time to form a definite judgement or that he has heard nothing against the officer, as the case may be.

(b) If, as a result of the follow up action, the doubts or suspicions are cleared, the officer’s integrity should be certified and an entry made accordingly in the Confidential Report.

(c) If the doubts or suspicions are confirmed, this fact should also be recorded and duly communicated to the officer concerned.

(d) If as a result of the follow up action, the doubts or suspicions are neither cleared nor confirmed, the officer’s conduct should be watched for a further period and thereafter action taken as indicated at (b) and (c) above.

(Ministry of Home Affairs OM No.51/4/64-Estt (d), dated 21.6.1963.)

 

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