Orissa High Court
Afr Padmanav Choudhury vs State Of Orissa & Ors. ..... Opp. Parties on 17 January, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 32664 OF 2011
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Padmanav Choudhury ..... Petitioner
-Versus-
State of Orissa & Ors. ..... Opp. Parties For Petitioner : M/s. B. Mohanty, B. Samantray, R.K. Bisoi and B. Tripathy, Advocates For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate [O.Ps.No.1& 2] M/s. S.B. Jena & A. Swain, Advocates [O.P. No.3] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE B.P. SATAPATHY DECIDED ON : 17.01.2023 DR. B.R. SARANGI, J. The petitioner, who belongs to OFS cadre, by means of this writ petition, seeks to quash the order dated 24.06.2011 under Annexure-4 passed by the // 2 // Orissa Administrative Tribunal, Bhubaneswar in O.A. No.571 of 2009, the letter dated 23.04.2004 issued by opposite party no.3-OPSC and the order of reversion dated 04.09.2004, and further seeks to issue direction to opposite parties no.1 to 3 to antedate his date of promotion to OFS 1(JB) to the date of promotion of his juniors, i.e., 05.09.2002 or to 08.05.2003, i.e., the date when he was given ad hoc promotion.
2. The factual matrix of the case, in brief, is that the petitioner was appointed in OFS regular recruitment for 1988-89, pursuant to which he joined on 05.11.1988. While continuing in service, adverse remark in his CCR for the year 1995-96 was communicated on 29.12.1999. His batchmates in OFS cadre and immediate juniors were promoted to OFS (I) JB on 05.09.2002, pursuant to which they joined on 08.05.2003. Disciplinary proceeding, which was pending against the petitioner as on the date of DPC, resulted into keeping the fate of consideration in respect of the petitioner in sealed cover was withdrawn on 17.09.2002. Adverse remarks communicated to the petitioner, vide letter dated // 3 // 29.12.1999 was expunged on 01.02.2003. The Review Selection Board meeting was held on 12.03.2003 for promotion to OFS-I (JB) for 2001-2002. The petitioner was promoted to OFS-I(JB) on ad hoc basis on 08.05.2003. On 23.04.2004, opposite party no.3-OPSC refused to grant concurrence to the ad hoc promotion granted by Review Selection Board. As a consequence thereof, the petitioner was reverted to OFS-(II) on 04.09.2004.
2.1 Challenging the order of reversion dated 04.09.2004, the petitioner approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.1794 (C) of 2004 and subsequently on transfer to the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar, the same was renumbered as O.A. No.360 of 2007. During pendency of this O.A., the petitioner was promoted to OFS-I (JB), vide order dated 27.07.2005. Therefore, he filed a representation to the Government requesting to antedate his promotion to the date when his juniors were promoted i.e. w.e.f. 05.09.2002. The Tribunal, vide order dated 24.07.2007 // 4 // disposed of the said O.A. directing the opposite parties to consider his representation and pass appropriate order. On 12.12.2008, CCRs were called for to effect the promotion in OFS (SB). The Gradation List of OFS-I(JB) prepared as on 01.01.2009 did not reflect the seniority position by antedating promotion to 05.09.2002. Therefore, the petitioner approached the Tribunal by filing O.A. No.571 of 2009 assailing the inaction of the opposite parties and seeking direction to antedate his promotion w.e.f. 08.05.2003 with all financial and service benefits. The Tribunal, vide order dated 24.06.2011 disposed of the said O.A. by not acceding the prayer made in the application itself. Hence, this writ petition.
3. Mr. R.K. Bisoi appearing on behalf of Mr. B. Mohanty, learned counsel for the petitioner contended that because of pendency of the disciplinary proceeding, the petitioner was not given promotion in due time. When the adverse remarks were expunged, he claimed for promotion from the date, i.e. 05.09.2002, when his juniors were promoted to the post of OFS-I(JB). But the same was not taken into consideration. As such, ad hoc // 5 // promotion was granted to the petitioner and when the same was not concurred by the OPSC, he was reverted to OFS-(II) on 04.09.2004. Subsequently, he got promotion to the post of OFS-I (JB) on 27.07.2005. Therefore, the reversion of the petitioner to the post of OFS-(II), vide order dated 04.09.2004 is absolutely an outcome of non- application of mind. More so, the claim of the petitioner is that he should be granted promotion w.e.f. 05.09.2002, the date his juniors were promoted. It is further contended that the Tribunal has failed to perceive that the only adverse CCRs, which were communicated to the petitioner was expunged, vide letter dated 01.02.2003. Thereby, the Tribunal has failed to consider the fact that DPC held on 06.02.2002 kept the finding in sealed cover on account of pendency of a departmental proceeding but not on account of adverse CCR. Since the departmental proceeding was withdrawn, vide order dated 17.09.2002, the Review DPC held on 12.03.2003 opened the sealed cover and found him suitable for promotion and he was accordingly promoted, vide order dated 08.05.2003. But the Tribunal has committed gross error in appreciating // 6 // the facts. To substantiate his contentions, learned counsel appearing for the petitioner has relied upon the judgments of the apex Court in Dev Dutt v. Union of India, AIR 2008 SC 2513 and Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146.
4. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties on the basis of facts contended that there is no dispute with regard to adverse remarks in the CCR and the petitioner was facing departmental proceeding. After exoneration from the adverse CCRs, the case of the petitioner was considered for promotion to the post of OFS-I(JB) on ad hoc basis vide Finance Department Notification dated 08.05.2003. Since OPSC did not grant concurrence to the promotion, the petitioner was reverted to the post of OFS-(II) on 04.09.2004.
5. Mr. S.B. Jena, learned counsel appearing for opposite party no.3-OPSC contended that since the departmental proceeding was pending and the petitioner faced adverse remarks in CCR, the OPSC could find as to how the review selection board found the petitioner // 7 // suitable for promotion. The records available before the DPC were not complete for five relevant years. The service records indicate he had been rated 'average' when he was working as Sales Tax Officer under the Finance Department. Therefore, the so-called ad hoc promotion given to the petitioner cannot be sustained in the eye of law. As such, after expunction of adverse remarks, his performance was under scrutiny for a period of three years and that period was not expired. As a consequence thereof, OPSC has not committed any error by not giving concurrence to the ad hoc promotion of the petitioner. Therefore, the Tribunal is well justified in passing the order impugned, which does not warrant interference of this Court.
6. This Court heard Mr. R.K. Bisoi on behalf of Mr. B. Mohanty, learned counsel appearing for the petitioner; Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties and Mr. S.B. Jena, learned counsel appearing for opposite party no.3-OPSC through hybrid mode. Pleadings have been exchanged between the parties and // 8 // with the consent of learned Counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
7. The factual matrix, as succinctly enumerated above, is not in dispute. The only question required to be considered is that once the adverse remarks are expunged vide communication dated 29.12.1999 and the Review Selection Board meeting held on 12.03.2003 found the petitioner suitable for promotion to the post of OFS-I(JB) for 2001-02, whether the OPSC is well justified in refusing to grant concurrence to the ad hoc promotion of the petitioner, vide letter dated 23.04.2004, resulting reversion of the petitioner to the post of OFS-(II) on 04.09.2004.
8. On the basis of the materials available on records, it appears that the proposal for promotion to the post of OFS-I(JB) for the year 2001-02 relating to the Selection Board dated 06.02.2002 was received from the Government in Finance Department in their letter dated 09.10.2002 for consideration by the OPSC. The said // 9 // Board had nominated 41 officers against 25 vacancies and considered the petitioner 'unsuitable' for promotion to OFS, Class-I (J.B) due to pendency of departmental proceedings and recording of adverse entries in his CRs for the period 1995-96, i.e. 17.05.1995 to 31.03.1996 and 1997-98. As a result, the recommendation of the said Selection Board in respect of the petitioner was kept in sealed cover. Therefore, the OPSC while considering the aforesaid proposal had recommended only 4 officers for such promotion and requested the Government in Finance Department to send the complete CCRs of the remaining nominated officers for consideration by the OPSC letter dated 23.04.2003. Instead of sending the complete CCRs of the remaining nominated officers, the Government in Finance Department had intimated vide letter dated 23.05.2003 that the departmental proceedings drawn up against the petitioner has been closed and charges withdrawn in Finance Department office order dated 17.09.2002 and the recommendation of the Selection Board in respect of the petitioner which was kept in sealed cover was opened on 28.09.2002 in which // 10 // it is found that the Selection Board had considered the petitioner unsuitable for such promotion. Further, the Department intimated that adverse remarks recorded in the CCRs of the petitioner for the period 1995-96 (17.05.1995 to 31.03.1996) has been expunged in G.A. Department D.O. dated 01.02.2003 and on the basis of his representation, a review DPC which was held on 12.03.2003 to consider the suitability of the petitioner for promotion to OFS-I(J.B) had recommended the name of the petitioner for promotion to OFS, Class-I(JB). Accordingly, he was allowed promotion to OFS, Class- I(JB) on ad hoc basis for a period of one year, vide Finance Department's Notification dated 08.05.2003. As such, the Government in Finance Department had requested the OPSC to communicate their view with regard to promotion of the petitioner to the rank of OFS, Class-I(JB) against the Review Selection Board held on 12.03.2003.
9. The OPSC, while examining the proceedings of review Selection Board held on 12.03.2003 and assessment of CCRs furnished by the Department, could // 11 // not find as to how the review Selection Board found the petitioner suitable for promotion. The records available before the DPC were not complete for five relevant years. The records of previous year 1994-95 also contain 'No Remarks'. The Selection Board held on 06.02.2002 had not considered him suitable. In this background, the OPSC went through the CCRs available in the year 1992- 93 wherein his administrative ability is found satisfactory and knowledge of Law is satisfactory. In the year 1993- 94, it has been observed that the petitioner's performance is indifferent and average in nature. In the year 1996-97, it appears that power of taking responsibility is average, his output is average and knowledge of Law and Accounts is average, and his overall performance is average. In the year 1997-98, his power of taking responsibility is adjudged as average. His knowledge of Law and Accounts is average, and overall performance is average. At the same time, the petitioner had 'Outstanding' remarks in the year 1998-99 when he was working in Animal and Husbandry Department. But he had been rated 'Average' when he was working as Sales // 12 // Tax Officer under the Finance Department. Taking all these facts into consideration, the OPSC felt that the petitioner with such records is not fit for promotion to the next higher rank. Therefore, the OPSC has not given concurrence to the recommendation made for giving him promotion to the post of OFS-I(JB) and as a consequence thereof, he was reverted back to the post of OFS-(II).
10. The Tribunal, while adjudicated the matter, came to a finding that it is not to sit on the opinion and the findings of the OPSC unless it suffers from arbitrariness and, as such, the Tribunal found that the OPSC has carefully considered the performance of the petitioner to adjudge his suitability to hold the promotional post. Considering his CCRs, the Tribunal held that the petitioner was an average rated officer and, therefore, the reasons stated by the OPSC for not giving promotion are not arbitrary or mala fide and consequently dismissed the O.A. filed by the petitioner.
11. The petitioner has placed reliance on the judgments of the apex Court in Dev Dutt and Abhijit // 13 // Ghosh Dastidar (supra). The cases of the petitioners therein are factually different than the case of the petitioner herein and, as such, the reasons which have been assigned are not akin to the present one. Therefore, the said judgments are distinguishable.
12. In the above view of the matter, this Court is of the considered opinion that the Tribunal is well justified in dismissing the O.A. No.571 of 2009 vide order dated 24.06.2011.
13. Accordingly, the writ petition merits no consideration and same is hereby dismissed. However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
B.P. SATAPATHY, J. I agree.
(B.P. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 17th January, 2023, Alok