K.K Mathew, J.:— The petitioner, who was a Statistical Inspector, was promoted as Research Officer in the Bureau of Economics and Statistics and was posted as Economic Investigator in the Rural Industrial Project, Kozhikode, as per the order dated February 18, 1963 passed by the first respondent (see Ex. P. 1). Two other persons, namely, V.K Paran Unni and Khaskara Menon, were also promoted as Research Officers under that order. The petitioner states in his affidavit:
“In the selection list of the P.S.C there were nine persons junior to the petitioner and they were also appointed as Statistical Inspectors. Since February 18, 1963 these juniors as well as 9 others were promoted as Research Officers. Except the said Sri Paran Unni and the petitioner all the other incumbents are now functioning as Research Officers.”
2. The petitioner and Paran Unni were reverted as Research Assistants by an order passed on June 23, 1964 by the first respondent (Ex. P. 2).
3. The reason why that order was passed is stated in the order as follows:
“Sri K.K Karunakaran and Sri V.K Paran Unni provisional Research Officers on Rs. 200—400, now working as Economic Investigator, Rural Industries Project, Alleppey and Kozhikode respectively are reverted to the subordinate cadre of Research Assistants/Statistical Inspectors in this Bureau as they are not considered fit for higher post for the present.”
4. The petitioner's complaint is that this order was passed on the basis of the recommendations of the Departmental Promotion Committee and that the Committee relied mainly upon the confidential record of the petitioner for the years 1961 to 1963 for their recommendation but that the confidential records were not prepared in accordance with the Government Orders governing the subject. It was contended that the adverse remarks against the petitioner in the confidential records were not communicated to him and that he was given no opportunity to make his representations. The petitioner therefore contends that Ext. P. 2 order was passed against the principles of natural justice.
5. It is not necessary for me to consider the contention of the petitioner that the adverse remarks in his confidential record of 1958 were communicated to him only in 1964 and therefore remarks in that record should not have been used against him, as it is clear from the counter affidavit on behalf of the State that the Departmental Promotion Committee did not look into that record for making the recommendation. The main ground raised by the petitioner, as I have already said, is that the Departmental Promotion Committee erred in looking into the adverse remarks in his confidential records for the years 1961 to 1963 as those records were not maintained in accordance with the principles laid down in the various Government Orders concerning the subject.
6. In the counter affidavit filed on behalf of the State, it is stated that the Departmental Promotion Committee met on June 4, 1965, that the petitioner's name was included in the select list, and that on the basis of the advice of the Committee the petitioner has been Promoted as Research Officer in the Proceedings dated June 5, 1965 of the first respondent and therefore the questions raised in the writ petition has become moot. But petitioner's counsel submitted that his rank among the Research Officers would depend on the decision of the question whether he was entitled to be Promoted earlier and therefore it is necessary to decide the question whether Ex. P. 2 order was properly passed. The question to be considered is whether the Departmental Promotion Committee was right in looking into the adverse remarks against the Petitioner in his confidential records for the years 1961 to 1963 when admittedly they were not communicated to him as enjoined by the Government orders and he was given no opportunity to make his representations concerning them. The learned Government Pleader did not dispute the fact that the adverse remarks entered in those records were not communicated to the Petitioner.
7. I have gone through the confidential records and I do not think that the adverse remarks were communicated to the Petitioner. The Government Orders regarding this matter are clear that adverse remarks must be communicated to the government servant concerned and his representations, if any, should be filed with the remarks. Since the adverse remarks were not communicated to the petitioner and since he was not given an opportunity to make his representations, the Departmental Promotion Committee should not have acted upon the remarks in the confidential records for coming to the conclusion that the petitioner was not fit for the post. It was contended by the learned Govt. Pleader that even if the Departmental Promotion Committee took into account the adverse remarks against the petitioner in the confidential records for assessing his merit in considering the question whether he was fit to be promoted to the post, it is not open to this court to exercise its jurisdiction under Art. 226 as no right of the petitioner was violated by the disregard of the executive direction of the Government in the preparation and maintenance of confidential records. In other words, the argument was that even if the adverse remarks were not communicated to the petitioner and no opportunity was given to him for making the representation, it was not open to this court to come to the conclusion that the selection made by the Departmental Promotion Committee was vitiated merely because the Committee looked into the confidential records of the petitioner for assessing his merit, as the Government orders regarding the keeping of the confidential record are only administrative in character and that their violation would not give rise to a justiciable issue which could be taken cognizance of by this court for giving the petitioner the relief he claims. While admitting that the directions given by the Government for keeping the confidential record are administrative in character, I do not think that the Departmental Promotion Committee was acting in a judicial spirit if they looked into the confidential records where adverse remarks against the petitioner have been entered without giving him opportunity to make his representations against them. Fairplay demands that when a body is practically deciding the question whether a Government servant should be promoted to a selection post that body should not look to the onesided version of his supervisors as regards his merit and suitability for promotion without an opportunity being given to him for making his representations.
8. It is true that a government servant has no right to be promoted to a selection post. Nevertheless he has got a right to have his case considered by the Committee impartially and in a judicial spirit. That was the object for constituting the Departmental Promotion Committee. If reliance is to be placed upon confidential record for assessing the merit of a government servant for promotion, I think it is necessary that the record should have been kept substantially in accordance with the provisions of the Government Orders concerning the matter, not because those Orders have statutory force but because they embody the salutory principle of natural justice that before condemning a person he must be given an opportunity of being heard. That is the democratic way of dealing with the matter. That would engender a conviction in the mind of the Government servant that he has been fairly dealt with. It was therefore necessary that the confidential record placed before the Committee should have been prepared in accordance with the rules of natural justice. I am not very much concerned with the question whether the Orders issued by the Government from time to time as regards the preparation and maintenance of confidential records have got the force of law or that the violation of the provisions of those Orders could give rise to justiciable issue. Even there, I have got considerable doubt whether this court can disregard the provisions of the Government Orders on the ground that they are administrative directions. They are directions issued by the Government to their officers and are binding on them. They are attended with sanctions in the sense that Government can make proceedings against them for dereliction of duty if they fail to observe their provisions.
9. The following passages from Nature and Sources of the Law by John Chipman Gray, page 108, may be referred to in this connection, to show that in certain circumstances a court is bound to take cognizance of and give effect to administrative orders and regulations:
“Section 246: Are these regulations and orders sources of the Law? It is hard to imagine any of them which may not be brought before a court for application and whose ultimate sanction is not that the courts will apply them. Let us take one of Mr. Harrison's instances a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the Government for being short in his accounts; among other itms he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation, and, whatever its effect may be, that effect will be given to it by the court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses.
Section 247: It is therefore, on the best consideration I can give the subject, impossible to say that any general rule of conduct laid down by an administrative organ of a political (or other) organized body, and applied, if necessary, by its courts, is not a source of law”.
10. For the purposes of this case it is enough for me to say that the Departmental-Promotion Committee when they looked into the confidential record were looking into a onesided picture as they had not the benefit of the representation which the petitioner was entitled to make in respect of them. It would seem as though the superior authorities alone had the opportunity to have their say against the petitioner without the petitioner being aware of them. This is not to say that the petitioner has got a right of being heard before the Departmental Promotion Committee. I think that the Departmental Promotion Committee went wrong in acting upon the confidential records because the adverse remarks entered therein were not communicated to the petitioner.
11. As the petitioner has been promoted to the post of Research Officer in 1965, it is only necessary that the Government should examine the question whether the reversion of the petitioner on June 23, 1964 under Ext. P. 2 and the promotion of his juniors to the post were justified. The Government will place the matter before the Departmental Promotion Committee, after communicating the adverse remarks to the petitioner and giving him an opportunity to make his representations. The writ petition is disposed of as above. No costs.