Orissa High Court
Iswar Chandra Pradhan vs State Of Odisha Represented Through The ... on 16 May, 2017
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA,CUTTACK
Writ Petition (C) No.8180 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Iswar Chandra Pradhan ......... Petitioner
Versus
State of Odisha represented through
the Secretary, Law Department and others ......... Opposite Parties
For Petitioner : M/s.M.K.Pati, D.P.Nanda, H.S.Dalai and
R.Mohapatra
For Opp. Parties : Mr.Bibhu Prasad Tripathy
Additional Government Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:19.04.2017 Date of Judgment:16.05.2017
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Dr. D.P.Choudhury, J. The petitioner, in this writ petition, assails the
action of the opposite parties in not giving promotion to him.
FACTS
2. The factual matrix leading to the case of the petitioner is
that the petitioner entered into service in the judgeship of Cuttack on
15.12.1987as a Junior Clerk and subsequently, he was promoted to the post of Grade-III Bench Clerk on 12.1.2012 by the order of the District Judge, Cuttack. While the petitioner was working satisfactorily, one adverse remark in the Confidential Character Roll (CCR) for the period -2- from 03.08.2012 to 29.04.2013 was communicated to him on 06.06.2013. The said period relates to his incumbency in the Court of the learned J.M.F.C. (P), Kujanga. The petitioner submitted his representation (Annexure-2) to expunge the adverse remark made in his CCR on the ground stated therein. It is alleged inter alia that the Departmental Promotion Committee (hereinafter called as "the DPC") did not consider the case of the petitioner for promotion on the ground of adverse entry in his CCR. There was no preliminary enquiry as to the allegations made and no prima facie case was made out justifying denial of promotion to the petitioner. However, the batch-mates of the petitioner got promoted after superseding him. The criteria for promotion is normally made on the basis of merit-cum-suitability in all respect with due regard to the seniority. Moreover, while giving promotion, the DPC is to scrutinize the available preceding five years CCRs. It is stated that the petitioner was promoted to Grade-II Bench Clerk on 30.04.2014, which is only ten months after being superseded on 17.05.2013. It is alleged inter alia that the relevant rules have not been followed in this case while superseding him. Resultantly petitioner made representation on 19.8.2014 (Annexure-3) to restore his seniority with consequential relief, but that was rejected illegally on 23.2.2015.
3. Be it stated that the CCR of the petitioner has been made throughout good except the aforesaid period. So, the writ petition is filed to expunge the adverse entry made in the CCR of the petitioner for the period from 03.08.2012 to 29.04.2013 and to allow all service -3- benefits including financial benefits with effect from 24.6.2013. The petitioner has also sought for the intervention of this Court for directing the opposite party no.2 to regularize the service of the petitioner.
4. Per contra, a counter affidavit has been filed by the opposite party no.2 refuting the allegations made in the writ petition. It is the case of the opposite party no.2 that the petitioner, while working for the period from 18.01.2012 to 28.07.2012 and 03.08.2012 to 29.04.2013 as Bench Clerk to the learned J.M.F.C., Kujanga, he was awarded two adverse entries in his CCR by two successive Presiding Officers vide Annexure-A/2. Be it stated that the name of the petitioner was brought under zone of consideration for promotion to the next higher post in accordance with Rule 11 of Orissa District & Sub-ordinate Courts Non- Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called as "the Rules, 2008") and Orissa Civil Service (Zone of Consideration for Promotion) Rules, 1998 and other notifications of the State Government, but the DPC, in its meeting held on 17.5.2013, did not recommend the petitioner for promotion to the next higher post due to the adverse entries made in his CCR for the above two successive spell.
5. It is stated that the adverse entries made in the CCR of the petitioner is mainly related to the unbecoming conduct on the part of a Government servant being quarrelsome and mischief monger and instigate bar members against the P.O. As the DPC did not promote the petitioner for the reasons best recorded, he was not promoted to the -4- next higher post. The Rule provides for promotion to the officers who are not only have merit but also have got seniority, but the petitioner could not fulfil the criteria to occupy the next higher post. Not only this, but also the Ex-J.M.F.C., Kujanga, in his confidential report, stand by the remark given in the CCR of the petitioner. The CCR of the petitioner has been duly communicated to him and his representation has been rightly rejected after being considered in view of the General Administration Department Memo No.741 dated 5.2.1982. In the year 2014, the petitioner was promoted to the post of Grade-II Bench Clerk. Be it stated that on 19.8.2014, the petitioner had made representation to restore his seniority with effect from 24.06.2013 in the gradation list but the same has also been rejected in view of Rule-9(2) of the Rules, 2008. On the whole, it is stated that the petitioner was rightly not promoted due to the adverse entries in his CCR which are serious in nature.
6. The petitioner filed rejoinder to the counter of the opposite party no.2 reiterating the facts narrated in the writ petition and some fresh facts. It is revealed from the same that at no point of time, the petitioner was asked to explain about the adverse remark as mentioned in the counter affidavit for the period from 18.01.2012 to 28.07.2012. According to him on 12.01.2012, the petitioner has been promoted to the post of Grade-III, Bench Clerk vide Annexure-7. If at all the petitioner could be found suitable for promotion on 12.01.2012, it is not correct to say about the change of conduct, attitude and behaviour of -5- the petitioner subsequently as the CCR from 18.01.2012 to 28.07.2012 is allegedly not good. When the CCR for the above period is not communicated to the petitioner, the benefit of same should be accorded to him. When there is no enquiry or any explanation called for from the petitioner as to the entry in the communicated adverse remark, the authority should not have taken the same into consideration to deny him promotion. The petitioner has also submitted in the rejoinder to go through the service record and the CCR to justify his claim.
7. SUBMISSIONS Mr.Nanda, learned counsel for the petitioner submitted that the petitioner, right from the date of his joining, till date, has got an unblemished character roll except for the period from 03.08.2012 to 29.04.2013. He further submitted that the communication of adverse entries in the CCR is only for a period of less than nine months and since the preceding five years CCR has to be gone through and the CCR for the rest of the period of preceding five years are favourable, the petitioner should have been promoted. Even if the petitioner has made representation to expunge the adverse entries in his CCR, it was rejected after the consideration of promotion to the next higher post. According to him, in such circumstance, it may be well assumed that the petitioner was not given adequate opportunity to ventilate his grievance for considering his case for promotion to the next higher post.
8. Mr.Nanda, learned counsel for the petitioner further contended that the opposite parties, while considering the petitioner's -6- case for promotion, should have also considered the seniority as the employees below him in the gradation list, got promoted. The criteria for preceding five years should be understood in accordance with Orissa Civil Service (Criteria for Promotion) Rules, 1992 (hereinafter called "the Rules, 1992"), but the same has not been followed in the case of the petitioner. The entire service career, as would be appearing from the CCR of the petitioner, would go to show that the petitioner has got absolute integrity and has no adverse entries except the alleged one which is false and concocted one. When an employee has maintained his competency and character through-out, it is improbable on his part to behave in unbecoming manner for a very short span. So, the adverse entries in the CCR of the petitioner should have been expunged and the petitioner could have been promoted to the next higher post basing on the CCRs already available on record. He further submitted that the learned District Judge has committed an error by rejecting the representation of the petitioner on extraneous consideration, but not with reference to the Rules. When admittedly, there is no Departmental Proceeding or any other criminal proceeding against the present petitioner and he has no any adverse entries through-out his service career except the alleged one, debarring him from further promotion is not only discriminatory but also has damaged his service career. So, there is serious discrimination which is violative Articles 14 and 16 of the Constitution of India and as such, the writ petition be allowed and the -7- petitioner be promoted to the next higher post by restoring his seniority with effect from 24.06.2013.
9. Mr.Tripathy, learned Additional Government Advocate submitted that the opposite party-appointing authority has considered the representation of the petitioner to expunge the adverse entries made in his CCR, but due to seriousness allegations, it was rejected. He further submitted that the adverse entries in his CCR by successive Judicial Officers being in the same manner, there is no doubt that the petitioner has no regard to the discipline in the Judicial Department and as such rightly he was not promoted to the next higher post. According to him, the adverse entries in the CCR of the petitioner within the preceding five years of the promotion have been taken into consideration by the DPC and thus, his demerit has superseded his seniority. On the other hand, the petitioner's case although went under the zone of consideration for promotion, but considering his CCR vis-a- vis the CCRs of others, he was not promoted due to such adverse entries in his CCR. He also stated that seniority is not the sole criteria always to consider the case for promotion but also merit is the main criteria for promotion as per Rules, 2008 and Rules, 1992. So, the writ petition is sans merit.
10. POINTS FOR CONSIDERATION The main points for consideration are:
(i) whether the petitioner is entitled to be promoted to the next higher post?-8-
(ii) Whether the adverse entry made in the CCR of the petitioner for the period from 03.08.2012 to 29.04.2013 can be expunged?
11. DISCUSSIONS It is admitted that the petitioner joined in the judgeship of Cuttack as a Junior Clerk on 15.12.1987 and he was promoted to the rank of Grade-III, Bench Clerk on 12.01.2012 vide Annexure-7. His promotion to the rank of Grade-II, Bench Clerk was not made due the adverse remarks against him in his CCR. It is not in dispute that the petitioner made representation against the adverse entry in his CCR and the same was rejected by the opposite party no.2.
12. According to the General Administration Department Memo No.741/P.R.O.11/81(SE) dated 05.02.1982 with regard to the CCRs of non-Gazetted employees of the Government, the CCRs shall be maintained always financial year-wise and the report period will be from 1st April to 31st March. It is also made clear from the said circular that confidential remarks should be based on the assessing authority's personal knowledge of the employee's work and conduct and minimum observations period of four months would be required for an officer to form a reliable opinion about the work of a subordinate. The CCRs, on receipt, will be scrutinized in the office of the appointing authority and all adverse remarks will be communicated to the employee by the officer entrusted with maintenance of CCRs because the purpose of communication is to ensure that the employee rectifies the defect at the -9- earliest. The employee has right to make representation against the adverse remarks in his CCR for getting them expunged the representation should be examined and disposed of ordinarily within three months from the date of receipt of the same.
13. Now adverting to the facts of the present case, on 06.06.2016 vide Annexure-1, the petitioner was served with the adverse remarks in his CCR made for the period from 03.08.2012 to 29.04.2013, which is produced as under:
"OFFICE OF THE REGISTRAR, CIVIL COURTS, CUTTACK Confidential Letter No.22/Dt To Sri Iswar Chandar Pradhan Bench, Clerk Court of the J.M.F.C.(P), Kujanga I am directed to inform that while going through your CCR by the learned District Judge, Cuttack, the following adverse remarks has been made by the then J.M.F.C.(P), Kujanga during your incumbency as Bench Clerk of the said Court for the period from 03.08.2012 to 29.04.2013:
"His behaviour is very rude. He instigates other staff and Advocates of the local Bar to move against the P.O. His work is not satisfactory and he does not hesitate to argue with the P.O. in each occasion."
Therefore, you are directed to submit your view, if any, in the matter within three days of receipt of this communication positively.
Registrar, Civil Courts, Cuttack"
Except the above communication of adverse remarks, no other communication was made to the petitioner. Annexure-2 shows that the petitioner had made representation challenging the said adverse entry in his CCR on the ground that he has performed his duty as Bench Clerk to J.M.F.C. (P), Kujanga during the relevant period, i.e, 03.08.2012 to 29.04.2013 sincerely, honestly and efficiently. Annexure-3 shows that the petitioner made representation to restore his seniority because he
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was promoted to the post of Grade-II Bench Clerk later with effect from 30.04.2014 but not on 24.06.2013 when his juniors got promoted. But the said representation was also rejected by the appointing authority as per the provisions of Rule-9(2) of the Rules, 2008.
14. Mr.B.P.Tripathy, learned Additional Government Advocate relies upon Annexure-A/2 to counter the case of the petitioner. The said CCR relates to the period from 18.01.2012 to 28.07.2012 and 03.08.2012 to 29.04.2013 which read as follows: 1 2 3 4
18.1.12 Sr.Clerk During this period there Sd/-D.J to JMFC(P), was major change in 18.5.13 28.7.12 Kujanga him. He quarrels with P.O. & other staffs.
Rude behaviour
towards everyone.
However his work is
O.K
Sd/-28.7.12
3.8.12 Bench His behaviour is very Communicate
to Clerk, rude. He instigates Sd/-18.5.13
29.4.13 Court of other staffs and
J.M.F.C. Advocates of the local The
(P), Bar to move against representation of
Kujanga P.O. His work is not Iswar Pradhan
satisfactory and he has no merit. The
does not hesitate to observation of the
argue with the P.O. in immediate
each occasion superior officer is
Sd/-29.4.13 accepted.
Sd/-21.2.2015
15. The copy of entries shows that the reviewing appointing authority has verified the remarks of the reporting officer on one day, i.e., on 18.05.2013, but directed to communicate the adverse remarks with regard to the period from 03.08.2012 to 29.04.2013. On the other hand, the adverse entries with regard to the period from 18.01.2012 to 28.07.2012 was not communicated to the petitioner.
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16. Annexure-B/2 is the resolution of the DPC held on 17.05.2013. The relevant discussion in regard to the petitioner, which is at paragraph-8 of the same, is placed below for reference:
"xx xx xx xx
8.So far as Sri Iswar Chandra Pradhan placed at Serial No.8 is concerned although no D.P. has been initiated against him, the two successive entries made in his CCR covering the period from 18.1.2012 to 29.4.2013 speak adverse on his behaviour and official conduct. Two successive presiding officers have reported him to be quarrelsome and mischief monger. As noticed from his latest CCR entry, he goes to the extent of instigating the bar members to move against the Presiding Officer. His work is also reportedly not satisfactorily. Such a conduct is unbecoming on the part of a Government Servant, particularly an employee of our disciplined Department. In our considered view, he does not deserve to promotion until he mends his conduct and behaviour.
Xx xx xx xx"
17. The above discussion of the DPC shows that the DPC has taken into consideration the adverse entries made in the CCR of the petitioner for the period from 18.01.2012 to 28.07.2012 and 03.08.2012 to 29.04.2013. When the entry for the period from 18.01.2012 to 28.07.2012 has not been communicated to the petitioner at all, the same cannot be utilized against him.
18. The Hon'ble Supreme Court, in the case of Dev Dutt -V- Union of India and others; (2008) 8 SCC 725, at paragraph-41, have observed as follows:
"41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."
With due respect to the above decision, it is clear that non- communication of adverse entry cannot be considered by the DPC to
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utilize the same to deny promotion, which is violative of Article 14 of the Constitution of India and the same principle is applicable to the case at hand.
19. On further scrutiny of the records, it appears that the DPC was convened on 17.05.2013 whereas Annexure-A/2 shows that on 18.05.2013, the learned District Judge, Cuttack, opposite party no.2, directed to communicate the CCR for the period of 03.08.2012 to 29.04.2013, which is after the DPC convened its meeting and the said communication was made on 06.06.2013. On the other hand, there was no communication of the adverse entries for the relevant period to the petitioner prior to DPC convened its meeting. Thus, on the date of sitting of the DPC, there was no adverse entry for any period communicated to the petitioner giving rise to his representation to be made to expunge the said remarks. Since it is settled law that non-communicative adverse entry cannot stand as a bar to obstruct the promotion of an employee, the conclusion arrived at by the DPC taking such adverse remarks into consideration for not giving promotion to the petitioner, is not supported by any law.
20. As per Rule-3(c) of Odisha Civil Services (Criteria for Promotion) Rules, 1992, the DPC or Selection Committee shall scrutinize preceding five available annual CCRs and other documents, if any and this five years means the five years preceding the year in which the officer's performance is, in accordance with the relevant Recruitment
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Rules, first evaluated. For better appreciation, Rule-3(c) of the Rules, 1992 is placed below:
"3.xx xx xx (C) In order to judge the suitability of an officer for promotion, the Orissa Public Service Commission, the Departmental Promotion Committee, the Selection Committee or Selection Board, as the case may be, shall scrutinize preceding five available annual Confidential Character Rolls and other documents, if any, having a bearing on the performance and conduct of all eligible officers, unless for reasons to be recorded, it is considered necessary to refer to any earlier record to adjudge an officer's suitability:
Provided the available Confidential Character Rolls (C.C.Rs) taken into consideration for promotion as above shall include C.C.Rs covering at least a period of three years in preceding five years."
Note I - The expression other documents means papers of whatsoever nature having bearing on the performance and conduct of eligible officers like C. B. I. or Vigilance reports, papers relating to departmental action and other confidential reports having nexus with an officer's performances which might have been prepared after giving an opportunity to an officer of being heard and not reflected in his C. C. R's. or service records. Note II - The expression "Preceding five Years" means the Five years preceding the year in which the Selection Committee, Departmental Promotion Committee or Selection Board as the case may be, sits, but where the said committee sits for more than once such five years shall be reckoned from the date of its first meeting."
21. The DPC has not considered the case of the petitioner in the light of the provisions of law as enshrined in Rules, 1992. For that we have called for the CCR of the petitioner. The available CCRs of the petitioner are as follows:
"21.6.2004 Jr. Clerk in the Sincere, hard working and to office of the methodical in his work.
9.6.2006 SDJM, (S), Well mannered. Nothing is
Cuttack heard against him.
15.7.2009 Junior Clerk, Obedient, sincere and
to Court of dependable
02.07.2010 S.D.J.M.,
Cuttack
15.12.2010 Junior Clerk Good"
to
17.01.2012
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Besides the above CCRs, the CCR for the years previous to 2004 from the date of his entry into service, there is no adverse remarks. Rather, he has been rated as a good employee. Similarly, after the relevant entry till 2016, he bears no adverse remarks and has got satisfactory CCRs. Be that as it may, had the DPC taken into consideration the available five years CCR preceding the year of selection without taking non-communicative adverse CCR only for the relevant period, the case of the petitioner could have been favourably considered. Hence, we are of the view that the DPC, instead of taking into consideration the relevant entries for preceding five years in the CCR as per rule, has taken into consideration the non-communicated adverse remarks illegally and as such has improperly rejected the case of the petitioner for promotion to the post of Grade-II Bench Clerk.
22. It is also found that the opposite party no.2 gave promotion to the petitioner on 30.4.2014 to the rank of Grade-II Bench Clerk. But, it does not appeal to conscience as to how the petitioner being unsuitable for promotion in 2013, was found suitable for promotion in 2014 having the same CCR on the record. Thus, we are of the view that the petitioner has been denied promotion in 2013 illegally and the same is violative of Article 14 of the Constitution of India. On the other hand, he is entitled to be promoted in 2013 under the DPC held on 17.05.2013. Point No.(i) is answered accordingly.
23. Point No.(ii) It has been already discussed, as above, that the adverse entry communicated after the due date of DPC convened cannot be
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considered to obstruct the promotion of the petitioner on 17.05.2013 to the next higher post, i.e, Grade-II Bench Clerk. Also it is revealed from the material that the representation has been made by the petitioner to expunge such adverse remark made in his CCR and by Annexure-4, the Registrar, Civil Courts, Cuttack simply informed that the District Judge, Cuttack has been pleased to reject the representation as it was not found satisfactory. The representation vide Annexure-2 shows that the same has been made by the petitioner on 07.06.2013 in detail but consideration of the same was made only in 2015 being communicated vide Annexure-4. The opposite party no.2 is required to pass a speaking order while rejecting the representation of the petitioner. The same being not made, we are of the view that the same has not been considered in proper manner. Hence, the rejection of the same cannot be considered as legal. When not only the CCRs of the five years preceding the year of selection and subsequent year do not have any adverse remark but has satisfactory remark, the said adverse remark for the period from 03.08.2012 to 29.04.2013 is liable to be quashed. Considering all such materials, we are of the opinion that the adverse entry made in the CCR of the petitioner for the relevant period, i.e, from 03.08.2012 and 29.04.2013 is liable to be expunged. Point No.(ii) is answered accordingly.
24. CONCLUSION In view of the aforesaid analysis, the adverse entry in the CCR of the petitioner for the period from 03.08.2012 to 29.04.2013
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being liable to be expunged or quashed, the Court do order so. We, therefore, are of the considered view that the petitioner is entitled to be promoted to the post of Grade-II Bench Clerk with effect from 24.06.2013 instead of 30.6.2014 to the said post for which we direct that the petitioner be promoted to the post of Grade-II Bench Clerk when his juniors got promoted by restoring his seniority. However, service benefits including financial benefits be accorded to him notionally. Order for such promotion be passed within one month from the date of communication of this order.
The writ petition is disposed of accordingly.
Requisites for communication of the order be filed within a week.
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Dr.D.P.Choudhury,J
B.K.Nayak, J I agree.
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B.K.Nayak,J
Orissa High Court, Cuttack
Dated the 16th Day of May, 2017/B.Nayak