Orissa High Court
Suchismita Misra vs Registrar .Administration. Orissa ... on 19 January, 2018
Author: B.K. Nayak
Bench: B.K. Nayak
THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.8231 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
---------------
Suchismita Misra ... Petitioner
-Versus-
Registrar (Administration),
Orissa High Court, Cuttack ... Opposite Party
For Petitioner : M/s. R.K. Rath, P. Rath & J.P. Behera
For Opposite Party : Mr. K.K. Mishra
Additional Government Advocate
PRESENT:
THE HON'BLE MR. JUSTICE B.K. NAYAK
&
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
________________________________________________________
Date of hearing: 7.12.2017 Date of Judgment: 19.01.2018
________________________________________________________
Dr. D.P. Choudhury, J. The captive writ petition assails the adverse entries
against the petitioner's CCR for the years 2010 and 2011 and illegal
rejection of representation filed by the petitioner.
FACTS
2. The factual matrix leading to this writ petition is that the
petitioner entered into service and joined as Munsif on 2.1.1985. She
got promoted to different cadres at different times such as to OJS
Class-I (Junior), OJS Class-I, Chief Judicial Magistrate and then on
8.5.2009 she was promoted to the cadre of Orissa Superior Judicial
Service and posted as Additional District & Sessions Judge, Jajpur. On
2
9.4.2010 she was absorbed as regular District Judge after facing the
interview. Subsequently after completion of successful probation she
was confirmed and substantially appointed in the cadre of District and
Sessions Judge with effect from 8.4.2012 in terms of Rule 33 (5) of
the Orissa Superior Judicial Service and Orissa Judicial Service Rules,
2007 (hereinafter called "the Rules, 2007").
3. Be it stated that on 10.2.2014 as the luck of the petitioner
would have it, she received letter showing her Annual Character Roll as
'Poor' for the years 2010 and 2011. She made representation vide
Annexure-2 but that was rejected being not considered. However, the
petitioner was granted Selection Grade scale on 24.4.2015 and got
Supertime scale on 29.6.2016 under Rules, 2007. Since she has been
promoted from time to time and reached Super Time scale, any
adverse entry in the CCR for the years 2010 and 2011 would cause a
problem in the career of the petitioner in future for which the writ
petition is filed to quash such entry in the CCR and the order of
rejection of representation.
SUBMISSION
4. Mr. R.K. Rath, learned Senior Advocate for the petitioner
submitted that the petitioner has been promoted time to time after
entry into judicial service and finally she has already got the
Supertime scale as per Rule 5 of the Rules, 2007. The communication
of the adverse entry for 2010 and 2011 was made after four years and
3 years respectively on 10.2.2014 which are based on no material.
3
According to him, the delayed communication is itself bad in law which
is liable to be quashed. He relied on the decisions in (2013) 9 SCC
566; Sukhdev Singh v. Union of India and others, (2010) 8 SCC
155; Kazia Mohammed Muzzammil v. State of Karnataka and
another, (2012) 6 SCC 357; Registrar General, High Court of
Patna v. Pandey Gajendra Prasad and others and AIR 1989 SC
2218; Baidyanath Mahapatra v. State of Orissa and another.
5. Mr. Rath, learned Senior Advocate further submits that
entries have no value when promotion and service benefits have been
confirmed notwithstanding such entries. But the career throughout
having been maintained with good service record, such late rating on
performance should be quashed. In 2010 itself the petitioner has
appeared in the interview for the post of District Judge and became
successful and in the years 2010 and 2011 she has served as
Additional District Judge, Jajpur and till 2012 she completed the
probation and was regularized as District Judge. According to him, the
entries must be objective and should be written being supported by
reasons. He relied on the decisions reported in AIR 1999 SC 3273;
P.K. Shastri v. State of Madhya Pradesh and others and 2001
(2) SCC 305; Bishwanath Prasad Singh v. State of Bihar and
others.
6. Mr. Rath, learned counsel for the petitioner further
contended that the representation was made by the petitioner but it
was rejected without any reasons. According to him, as per the
4
decision reported in (2013) 9 SCC 566 (supra), the disposal of the
representation should be done in a fair manner for which the rejection
of the representation also suffers from infirmity. Learned counsel for
the petitioner further submitted that there are no contemporaneous
and simultaneous communications of any notice or intimation for the
substantive remarks ultimately made in the CCR of the petitioner. On
the other hand, since there being no such shortcomings got reflected
in the CCRs, same is also bad in law. In this regard, he relied upon the
decision reported in 1978(1) SLR 829;Madan Mohan Khatua v.
State of Orissa & others and also in AIR 1997 SC 3671;State of
U.P. v. Yamuna Shanker Misra and another. Since the petitioner
has been already promoted basing on merit-cum-seniority under
Rules, 2007, the impugned adverse entry should be expunged for
these two years.
7. Mr. K.K. Mishra, learned Additional Government Advocate
submitted without disputing the facts that the writ petition is not
maintainable as in the instant case the adverse entry has been
communicated to the petitioner because of the shortcomings in the
outturn in the civil side. The adverse entry was intimated in
accordance with the Rules after the adverse entry was confirmed by
the Full Court. According to him, the learned Administrative Judge
having endorsed such adverse entry, it was placed before the Full
Court dated 13.1.2014 and then the decision of the Full Court was
intimated to the petitioner. Moreover, judicial review of the CCR/ACR or
5
cases expunging this adverse remark is very limited and the writ Court
can interfere only in exceptional circumstances for compelling reasons.
If the Court comes to the conclusion that there was no occasion for the
authority to record adverse entries, then same may be interfered but
not otherwise. Learned Additional Government Advocate further
submitted that the Court's power of judicial review may be invoked
sparingly and under compelling circumstances. Since in the instant
case, the petitioner has been already promoted to the post of Super
Time, there is no cause of action to file the writ petition to expunge
adverse entry in the CCR for the years 2010 and 2011. When there is
no cause of action, the writ petition is also not maintainable.
8. Learned Additional Government Advocate submitted that
when there is no sufficient outturn in the civil side, she was intimated
vide Court's letter No.7611 dated 27.9.2010 and No.5434 dated
12.7.2012 for which her claim that she has got high standard in
service is not correct. It is further submitted on behalf of the opposite
party that since the promotion of the petitioner was considered by the
time of CCR up to 2009 and CCRs of 2010 and 2011 were not available
at that time, the promotion was given to the petitioner in 2011. So,
the entries in the CCRs of the petitioner made in 2010 and 2011 have
no nexus with her promotion. Hence, it is submitted to dismiss the writ
petition.
9. The main point for consideration:
(i) Whether the petitioner is entitled for expunction of the adverse
entries in the CCRs for the years 2010 and 2011?
6
DISCUSSION
10. It is not in dispute that the petitioner was appointed as
member of the OJS on 2.1.1985 and gradually got promoted without
any break to the cadre of District Judge. It is also admitted fact that
the petitioner was also confirmed as regular District Judge and has got
Selection Grade and Supertime scale in spite of the adverse entry
made in the C.C.R. for the years 2010 and 2011. It is not in dispute
that the adverse entry was communicated on 18.3.2015.
11. Since the adverse C.C.R. is the issue, it is relevant to go
through the G.R.C.O. (Civil) where the Guidelines have been given
about the entry in the C.C.R. of the Judicial Officers.
"NOTES ON PROCEDURE FOR RECORDING ANNUAL
CONFIDENTIAL CHARACTER ROLL OF JUDICIAL OFFICERS
NOTE
1. (a) Part-l of the form is to be filled up by the officers reported
upon.
(b) Part-ll of the form is to be filled up by the Chief Judicial
Magistrates.
(c) Part - III of the form is to be filled up by Hon'ble the Chief
Justice and the Registrars in case of officers working in the
Registry of the High Court, Government and head of institution
in case of officers on deputation to them.
If sub-part (a) of this part is filled up by Hon'ble Chief
Justice the sub-part (b) and (c) should not be filled up by any
other Authority. Similarly, if sub-part (b) of this part is filled up
by Hon'ble Chief Justice the sub-part (c) should not be filled up
by any other authority.
(d) The part-IV of the form is to be filled up by the Judge-in-
charge of the district in case of officers belonging to the cadre of
O.S.J.S (Sr. Br.) except the Registrars of the High Court by the
District Judges in case of officers below the cadre of O.S.J.S. (Sr.
Br.) officers of the rank of O.S.J.S. (Sr.Br.) competent to write
C.C.Rs. on deputation to the Government in case of officers
discharging judicial work.
7
(e) Part- V of the form is to be filled up by the Judge-in-
charge of the district in case of officers other than those
belonging to the cadre of O.S.J.S ( Sr. Branch).
(f) Part-VI of the form is to be filled up by the standing
Committee in case of officers other than the officers in the cadre
of O.S.J.S. (Sr.-Branch) and by the Full Court in case of officers
in the cadre of O.S.J.S ( Sr. Branch).
2. Officers working on deputation to the Government and
other institutions shall fill up the form is Part I and forward the
same to their next Higher Authority. Such authority shall
thereupon give his remarks in Part-Ill and send the same to the
Registrar (Administration) of the High Court who shall place the
same before the Judge-in-charge, of the district for further
necessary action as required in Part-VI of the form.
3. All officers are required to bestow care and attention in
filling up the respective portions of the form by them.
xx xx xx xx
5. (a) The Reporting Authority/District Judge under whom
a judicial officer is working for more than 4 months must record
the C.C.R. of the officer.
(b) The District Judge/Government should complete all
formalities and send the C.C.Rs. of the officer working under his
jurisdiction to the High Court on or before 31st January of the
following year.
(c) The Registrar (Administration) shall place the
relevant C.C.Rs. before the Judge-in-charge of the District by
the end of February and before the Hon'ble Chief Justice with
the remarks of Hon'ble Judge-in-charge by 31st March and by
order of Hon'ble the Chief Justice before the Standing
Committee and the Full Court by 30th April every year.]"
The aforesaid provision in G.R.C.O. clearly shows that the
C.C.R. of every Officer must be submitted by 31st January of next year
for the previous year with self appraisal report and in the cadre of the
Orissa Superior Judicial Service, the remark of the Administrative
Judge is to be obtained by the end of February and the C.C.R. must be
placed before the Standing Committee and the Full Court by order of
the Chief Justice by 30th April every year. This shows that the
8
procedure for adverse entry if any can only be known to the officer by
the end of next year so that he or she can improve the standard and
show better performance in the next year.
12. It is reported in (2007) 9 SCC 436; S.T. Ramesh v.
State of Karnataka and another, where Their Lordships have
observed at para-40 in the following manner:
"40.The confidential report is an important document
as it provides the basic and vital inputs for assessing
the performance of an officer and further achievements
in his career. This Court has held that the performance
appraisal through C.Rs. should be used as a tool for
human resource development and are not to be used
as a fault finding process but a developmental one.
Except for the impugned adverse remarks for a short
period of about 150 days, the performance of the
appellant has been consistently of high quality with
various achievements and prestigious postings and
meritorious awards from the President of India. We
have already seen that the appellant has been graded
as "very good", "excellent" and "outstanding"
throughout his career. It is difficult to appreciate as to
how it could become adverse during the period of 150
days for which the adverse remarks were made.
Furthermore, despite such adverse remarks, the
Government of Karnataka, considering his merit and
ability and outstanding qualities, has already promoted
the appellant as the Inspector General of Police".
13. With due regard to the said decision, it appears that
confidential report is an important document to assess the
performance of the employee and it should be maintained carefully.
14. In the same decision Baidyanath Mahapatra (supra)
Their Lordships also observed at para-5 in the following manner:
"5. No exception can be taken to the Government's
opinion in retiring the appellant prematurely on the
basis of the aforesaid recommendation of the Review
9
Committee as it clearly indicated that the appellant's
retention in service was not in public interest. The
purpose of the Rule conferring power on the
Government to retire Government servants pre-
maturely is to energise its machinery by "chopping of
the dead-wood" as held by this Court in Union of
India v. J.N. Sinha, (1971) 1 SCR 791:AIR 1971
SC 40). The question which falls for consideration is
whether the Review Committee was justified in making
its recommendations on the basis of adverse entries
awarded to the appellant in remote past especially
when the appellant had been promoted to the post of
Superintending Engineer in 1976 and he had further
been permitted to cross Efficiency Bar in 1979. The
adverse entries relating to the years 1969-70, 1970-
71, 1972-73 and 1975-76, had lost all significance,
because in spite of those entries the appellant was
considered to be an intelligent and efficient officer and
in that view he was promoted to the post of
Superintending Engineer. If those entries did not reflect
deficiency in appellant's work and conduct for the
purpose of promotion, it is difficult to comprehend as to
how those adverse entries could be pressed into service
for retiring him prematurely. When a Government
servant is promoted to a higher post on the basis of
merit and selection, adverse entries if any contained in
his service record lose their significance and those
remain on record as part of past history. It would be
unjust to curtail the service career of Government
servant on the basis of those entries in the absence of
any significant fall in his performance after his
promotion."
15. With due regard to the aforesaid decision, it appears that
any adverse entry communicated later to the promotion already made
has no significance and that should be ignored.
16. It is reported in AIR 1989 SC 2218;Baidyanath
Mahapatra v. State of Orissa and another where Their Lordships
observed at para-6:
"6. The adverse entries for the years 1969-70, 1970-
71, 1972-73 and 1975-76 were communicated in a lot
to the appellant in 1978, although under the
10
instructions issued by the State Government the
adverse entries must be communicated by December of
each year. The purpose of communicating adverse
entries to the Government servant is to inform him
regarding his deficiency in work and conduct and to
afford him an opportunity to make, amend, and
improvement in his work and further if the entries are
not justified the communication affords him an
opportunity to make representation. If the adverse
remarks awarded to a Government servant are
communicated to him after several years, the object of
communicating entries is defeated. It is therefore
imperative that the adverse entries awarded to a
Government servant must be communicated to him
within a reasonable period to afford him opportunity to
improve his work and conduct and also to make
representation in the event of the entry being
unjustified. In the instant case, adverse entries relating
to a number of years were communicated to the
appellant in one lot under a letter dated 27.2.1978
contrary to the instructions issued by the State
Government as contained in Circular No. 29 dated
19.2.1953. Belated communication of the entries
resulted into denial of reasonable opportunity to the
appellant to improve his performance. Further since
adverse remarks for several years were communicated
with inordinate delay it was impossible for the appellant
to make an effective representation against the same.
xxx xxx xxx"
17. With due regard to the said decision, it appears that the
object of communicating adverse entries should be achieved if the
communication is made within reasonable period and belated
communication of entries resulted into denial of reasonable
opportunity to improve his performance.
18. It is reported in (2008) 8 SCC 725;Dev Dutt v. Union
of India & others, where Their Lordships observed at paragraphs-17,
18, 36 and 37 in the following manner:
11
"17. In our opinion, every entry in the A.C.R. of a
public servant must be communicated to him within a
reasonable period, whether it is a poor, fair, average,
good or very good entry. This is because non-
communication of such an entry may adversely affect
the employee in two ways : (1) had the entry been
communicated to him he would know about the
assessment of his work and conduct by his superiors,
which would enable him to improve his work in future
(2) He would have an opportunity of making a
representation against the entry if he feels it is
unjustified, and pray for its upgradation. Hence, non-
communication of an entry is arbitrary, and it has been
held by the Constitution Bench decision of this Court
in Maneka Gandhi vs. Union of India; (1978)1 SCC
248 that arbitrariness violates Article 14 of the
Constitution.
18. Thus it is not only when there is a bench mark but
in all cases that an entry (whether it is poor, fair,
average, good or very good) must be communicated to
a public servant, otherwise there is violation of the
principle of fairness, which is the soul of natural justice.
Even an outstanding entry should be communicated
since that would boost the morale of the employee and
make him work harder.
xxx xxx xxx
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.
12
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 than 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 conducive 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."
19. With due regard to the aforesaid observation, the Hon'ble
Apex Court emphatically direct that every entry in the ACR must be
communicated within reasonable time so that the Officer concerned
would know about the assessment of his work and conduct by
superiors. By that means the Officer has got opportunity of making
representation for communication of the ACR within time and awarding
the chance of making representation are all factors to show the
transparency of administration and fairplay. If the system would not
work like this, there would be violation of natural justice of the
concerned officer as per Articles 14 and 16 of the Constitution.
20. The aforesaid decision has been also followed in (2013) 9
SCC 566;Sukhdev Singh v. Union of India and others and in the
decision reported in 2009 (16) SCC 146; Abhijit Ghose Dastidar v.
Union of India and others.
21. Now adverting to the case of the petitioner, it appears
that for the years 2010 and 2011 the learned Administrative Judge has
13
not found any integrity of the Officer doubtful but has reported the
overall rate 'Poor'. Moreover, the contents of CCR contradict the
counter affidavit filed by the opposite party inasmuch as there is no
observation in the impugned CCR for both years that she has got 'Poor'
disposal of the cases at the civil side but some other ground she has
been rated 'Poor'. It is true that the observation of the learned
Administrative Judge cannot be re-appreciated by the Court even in
judicial side but due to the inconsistency between the pleading and the
material of the opposite party, the contents of the ACR lacks sufficient
material to come to such conclusion as observed by the learned
Administrative Judge. Leaving aside this aspect, it appears that both
the CCRs do not disclose the date on which ACRs of both the years
were endorsed by the learned Administrative Judge and it is also not
found when those CCRs were received in the Registry. But it is
revealed from the counter that the CCRs of the petitioner were put up
before the Full Court on 13.1.2014. Thus, it is assumed that the ACRs
for 2010 and 2011 have been received in 2014 which is long after four
years and three years of the entry in the ACR. On the other hand the
adverse entries were only communicated after 13.1.2014 that means
long after one year of the relevant year entry. At any rate, the undated
ACR and non-communicated ACR within reasonable time lose
significance as per the decision in Devi Dutt (supra) and other
decisions of the Hon'ble Apex Court as stated above.
14
22. It is admitted by opposite party in para-16 of the counter
that CCRs for the years 2010 and 2011 were not taken into
consideration where promotion of the petitioner was held to the rank
of Supertime District Judge. Even if such adverse entry has not been
utilized to stall the promotion but timely communication about same
could have given the petitioner ample opportunity of meeting the
lapses as observed in the ACR.
23. Even if adverse entries have not been reflected in the
promotion but keeping such adverse entry in the career of the Officer
would put a stigma which may be utilized in future while reviewing the
whole career of the petitioner to continue in service. It is trite in law
that the whole career of the Officer should be verified while his service
is reviewed after the age of 50, 55 and 58 years in accordance with
the Rules, 2007. So, the adverse entries for these two years have got
cause of action to file the writ petition. That apart, the Officer has
maintained the career throughout without any adverse entry like 'poor'
and when the Officer has been promoted time to time and has no
career with 'poor' entry except these impugned entries and she has no
doubtful integrity even in 2010 and 2011, such entries have no
significance.
24. In terms of the above discussion, we are of the view that
the entry 'poor' in 2010 and 2011 as communicated having no
significance should be expunged. Point is answered accordingly.
15
CONCLUSION
25. In the writ petition, it has been prayed to quash the
communication of the adverse entry for the years 2010 and 2011 vide
Annexure-1 and order of rejection of the representation made by the
petitioner and also prayer for upgrading the CCR of petitioner as
outstanding for the year 2010 and 2011.
26. In view of the aforesaid observation that the entry in the
ACR 2010 and 2011 are liable to be expunged, the Court do so.
Accordingly, we hereby direct the intimation vide Annexure-1 that the
Character Roll of the petitioner in 2010 and 2011 as 'Poor' is also
quashed.
27. Moreover, Annexure-3 shows that the Special Officer
(Administration)-opposite party has intimated the petitioner in the
following manner:-
"ORISSA HIGH COURT:CUTTACK
2671
XXV-12/2011
From
Shri A.K. Chandan,
Special Officer (Administration)
To
Smt. Suchismita Mishra,
Registrar, Odisha Administrative Tribunal,
Bhubaneswar.
Cuttack Dated the 18th March, 2015
Sub:- Expunction of adverse remarks in C.C.R. for the
year, 2010 & 2011
Madam,
With reference to your confidential letter No.25 dated
12.03.2014 on the above subject, I am directed to say that,
16
the Court after careful consideration of your representation are
pleased to observe that no further consideration is called for.
This is four favour of your information.
Yours faithfully,
Sd/-
Special Officer (Admn.)"
28. The aforesaid Annexure-3 only shows that her
representation for expunction of adverse remarks in the CCR for the
years 2010 and 2011 has been rejected and communicated in 2015.
No reason has been assigned for that. As observed in the decision Dev
Dutt v. Union of India and others (supra) the rejection of the
representation should be preceded with reasons. Since there is no
reason assigned, such Annexure-3 is also liable to be quashed.
29. There is no Rule under Rules, 2007 or the Rule framed
above to show what would be the remark if no adverse remark is
communicated within two years from the last date of the year to which
the CCR relates. So, in such circumstances, the circular of the State
Government in G.A. Department dated 23.11.1987 may be pressed
into service. According to Clause 21 of such circular if no remarks are
received within two years from the last date of the year to which the
C.C.R. relates, it would be presumed "no remarks", and a note of "no
remarks" would be kept in the C.C.R. folder of the respective officers.
Now in the instant case, it is observed that the entries in 2010 and
2011 have been received on 13.1.2014 and put up before the Full
Court, same are found received long two years after the respective
years to which the CCR relates. Thus, in view of Clause-21 of the
circular, the CCR of 2010 and 2011 must be recorded "no remarks".
17
Thus, Annexures-1 and 3 have been quashed, but the prayer of the
petitioner that she should be rated 'outstanding' for the relevant years,
cannot be acceded to because the Court cannot in judicial side
substitute the remark except expunging the same which are found
non est. Such adverse entries in 2010 and 2011 cannot be counted for
any purpose whatsoever in future for the petitioner. We further direct
accordingly.
With the aforesaid direction, the writ petition is disposed
of.
..................................
Dr. D.P. Choudhury, J.
B.K. Nayak, J.I agree.
.................................. B.K. Nayak, J.
ORISSA HIGH COURT: CUTTACK Dated 19th January, 2018/Kar