Orissa High Court
Prafulla Kumar Mahar vs The State Of Odisha & Ors. .... Opposite ... on 24 July, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18188 of 2016
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Prafulla Kumar Mahar .... Petitioner(s)
-versus-
The State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Prajit Kumar Pradhan, Adv.
For Opposite Party (s) : Mr. Ishwar Mohanty, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-20.05.2024
DATE OF JUDGMENT: -24.07.2024
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the Petitioner, working as a Checker under the jurisdiction of the PIO, Divisional Forest Officer, Athmallik (KL) Division, has challenged the order of engagement/selection dated 21.06.2016.
2. Apart from the above challenge, the Petitioner has also sought for a direction from this Court to the Divisional Forest Officer, Kendu Leaf Division, Athmallik for engaging him in the post of Binding Checker in Signature Not Verified Digitally Signed Page 1 of 15 Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 Athmallik K.L. Range with effect from the date of engagement of his juniors as Binding Checker i.e. from 21.06.2016.
I. FACTUAL MATRIX OF THE CASE:
3. The brief fact of the case in brevity remains:-
(i) The Petitioner submitted an application before the DFO, Kenduleaf Division, Athmallik for an engagement in the said division. On his application, on 04.04.1991, the then DFO, K.L. Division, Athmallik was pleased to engage him as Chaparasi and, thereafter, engaged as Munsi on 20.04.2002, and as Checker on 01.03.2010.
(ii) While the matter stood thus, there are vacancies in the post of Binding Checkers in the different forest ranges in Athmallik Forest (KL) Division. Accordingly, under Forest Range Officer, Athmallik (KL) Range, 4 numbers of Binding Checkers posts are vacant. Against the said vacancies, the Opposite Parties/ State selected and engaged Opposite Party Nos.6 to 8 as Binding Checker, who are junior to the Petitioner as per the seniority list.
(iii) On 05.10.2015, the Principal Chief Conservator of Forest, (KL) Odisha (Opp. Party no.2) issued a guideline for cadre management of Seasonal Staff. In para 8, it is stated that Binding Checkers in a range office shall be recruited from the category of Checker of the same range and in para-11 of this guidelines it is clearly mentioned that in all cases of promotion, seniority and suitability shall be the criteria for selection. In other words, from amongst all the suitable candidates the senior most candidates should be selected.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 2 of 15 Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23
(iv) PCCF (KL) Odisha issued another letter vide memo No.2443 /KL(S)/91/2()14 dated 31.05.2016 stating therein that a Checker shall be eligible to be engaged as binding Checker after 3 consecutive crop years' experience as Checker.
(v) It is the grievance of the petitioner that the authorities debarred the Petitioner from getting his legitimate claim of promotion to the post of Binding Checker ignoring his seniority and suitability which clearly proves the malafide intention of the authorities and as such warrants interference of this Court to protect his legitimate claim of promotion. Hence, this Writ Petition.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions.
(i) The abovementioned guidelines dated 05.10.2015 clearly states that, in all cases of promotion, seniority and suitability shall be the criteria for selection. The post of Binding Checker is a promotional post which should be filled up from amongst the Checkers. A Checker shall be appointed as Binding Checker on the basis of his/her seniority. The Petitioner being the senior most Checker as would be evident from the Seniority List under Annexure-2, he should have been appointed/engaged as Binding Checker just after Sri Kusha Pradhan (Checker). But reasons best known to the Opposite Party No.4; the Opp. Party Nos.6 to 8 were selected and allowed to engage as Binding Checker ignoring the seniority of the Petitioner which is quite illegal Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 3 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 and arbitrary and as such the said selection list is liable to be quashed and the Petitioner to be selected and engaged as binding Checker in Athmallik (KL) Range.
(ii) As per the provision contended in para 2 of the letter dated 31.05.2016, after completion of 3 consecutive crop years experience as Checker, one shall be eligible to be engaged as Binding Checker. In the case of the Petitioner, he has been ignored even after completion of 6 consecutive crop years' experience as Checker since 01.03.2016.
(iii) The Petitioner was promoted to the post of Checker on 01.03.2010 whereas the Opposite Party Nos.6 to 8 were promoted to the post of Checker in the year 2013.
(iv) The Meeting of the Promotion Committee was held on 29.04.2016 to fill up the post of Binding Checker. Promotion was given to the junior of the Petitioner on 21.06.2016. At the time of selection for the Promotion, there was no such confidential report against the Petitioner and as no point of time he was served with any such report by any official authority. As per the guideline dated 05.10.2015, it is clear that the Binding Checker in a range shall be recruited from the category of Checker from the same range. In all cases of promotion, seniority and suitability shall be the criteria for selection.
(v) The Opposite Party Nos.1 to 5 filed their counter affidavit admitting that the petitioner is senior to the Opp. Party Nos.6 to 8 and he was considered for promotion but he was not found suitable. Therefore, the juniors were given promotion. But, they did not want to file the Signature Notperformance Verified report of the petitioner before this Court. Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 4 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23
(vi) Moreover they stated that they have considered the recommendation of Range Officer to taste suitability but as per the R.T.I Information, the Range Officer has not sent any performance report of seasonal staff 2015-16 till 29.08.2016 which is much later; after the date of selection. Therefore the plea of non-selection of the Petitioner due to poor performance and unsuitability is thoroughly false.
(vii) The plea taken in the reply to the re-joinder affidavit stating that the tenure of a Checker in a season is usually stated from the month of March to May of a year and since the guideline was published on First week of May 2015, so the memos were not issued. In that case, it is surprising as to how they received the performance report for the year 2015-16 on 29.04.2016 prior to the usual tenure.
(viii) If they have not considered the performance report for the year 2015-16, then the Opposite Party Nos.6 to 8 were not eligible to be considered for the post of Binding Checker due to want of three consecutive years experience as Checker as they are appointed as checker in the year 2013.
(ix) They tried their level best to hide their lacuna and to justify their stand by saying that the P.I.O. has supplied the information without proper search and intimation.
(x) The performance report which was not communicated cannot be utilized against the person (like Petitioner) concerned just to debar him from promotion. Therefore, the petitioner is entitled to get promotion to the post of Binding Checker from the date his juniors were given promotion i.e. 21.06.2016 with all service and consequential benefits. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 5 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23
(xi) He relied on the decisions of the Apex Court in the cases of Sukhdev Singh v. Union of India1 and Pankaj Prakash v. United India Insurance Co. Ltd. & Ors. 2.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NOS.1 TO 5/ STATE:
5. Learned counsel for the Opposite Party Nos.1 to 5/ State earnestly made the following submissions in support of his contentions:-
(i) In regards to the joining of the Petitioner as Checker on 01.03.2010 is correct, but the fact of stating that he is performing his duties as a Checker to the best satisfaction of higher authorities till yet representing himself is not correct. In the Orissa Kendu Leaves Manual, 1973 Chapter -II DUTIES AND RESPONSIBILITIES -10 the duties of Checker is mentioned. It is clear from clause (viii) that the assignment that he has to perform his duties as per suitable instruction of Head Checker, Forester and Range officer. Besides this, the assignment of the duties of the petitioner can be supervised by other higher officers of the Department. Hence, the petitioner's assertion in the Writ Petition that his performance is to the best satisfaction of the higher authorities may not be acceptable and proper.
(ii) The claims on the seniority list to the Writ Petition is only a data based information to ascertain the date from which they are engaged as Checker in Athmallik (K.L) Range. In order to consider the eligibility criteria of promotion in the interest of Kendu leaves operational works 1 (2013) 9 SCC 566 Signature Not2 MANU/SC/0921/2019 Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 6 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 is not only dependent on seniority but also past performance of his assignment.
(iii) The Principal Chief Conservator of Forests, (K.L.) Odisha (Opposite Party No.2) issued guidelines to streamline cadre management of seasonal staff vide Memo No.6759 (19) dated 05.10.2015. The Opposite Party No. 4 has carried out the executive instruction of Opp. Party No.2 i.e. Principal Chief Conservator of Forests, (K.L.) Odisha, Bhubaneswar in every respect and the order was passed accordingly.
(iv) Moreover, adequate measures have been taken by way of inviting their annual/past performances, their seniority and suitability, requisite qualification amongst the Checkers of the same Range to be engaged as Binding Checker. It is categorically mentioned that "in all cases of promotion, seniority and suitability shall be the criteria for selection. In other words from amongst all the suitable candidates the senior most candidates should be selected". Thus/ even though the Petitioner is senior to the Opposite Party Nos.6 to 8 since the date of joining as Checker yet he is not considered suitable to be engaged as Binding Checker based on the report of the controlling Officer i.e. Range Officer, Athmallik (K.L) Range. By way of obeying the suitable instruction and the guidelines in para 14 of the Opposite Party No.2 of the said memo the Divisional Committee the Opposite Party No.4 i.e. Divisional Forest Officer, Athmallik (K.L) Division passed the order. The Divisional Committee considering the performance educational qualification as well as all criteria and recommendation of the Range, Officer, Athmallik (K.L) Signature NotRange, the name of the Petitioner was excluded including the name of Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 7 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 the Krushana Ch. Danta who is pretty senior to the Petitioner. Thus, the order passed by the Opposite Party No.4 vide Office order No.72 dated 21.06.2016 is correct and judicious in the interest of Kendu leaves Trade.
(v) The executive instruction of the PCCF (KL) Odisha, Bhubaneswar and the order passed vide Office Order No.72 dated 21.06.2016 is supported with the fact of "a Checker shall be eligible to be engaged as Binding Checker after 3 consecutive crop years experience as checker". It is put forth that no Checker is allowed to be engaged as binding checker who have less than three years experience as Checker. The Divisional Committee sitting on 29.04.2016 had not approved the name of the petitioner to be engaged as Binding Checker based on his poor performance of last three years. The performance report of the checkers including the report of the Petitioner was received in this Office under confidential sealed cover from the Office of Range Officer, Athmallik (K.L.) Range vide Memo No.44 dated 04.02.2016 and, accordingly, the reports were presented before the Divisional Committee.
(vi) It is clarified that the objective and working of Kendu leaves wings under Forest and Environment Department, Government of Odisha whose functioning is Trade based wing and the seasonal staff are engaged apart from the regular staff and their services are recognized and required only for the interest of Kendu leaves Trade. So, though the petitioner was senior to Opp. Party Nos.6 to 8, yet, he has not been engaged to work as Binding Checker considering his unsuitability by the Divisional Committee. Thus, the order passed is not illegal, arbitrary Signature Notand non-est in the eye of law rather proper.
Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 8 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23
(viii) The question of assignment and engagement is based on the vacancy Position as per requirement for the interest of K.L. Trade. Thus, without considering the requirement and of the vacancy position the criteria to engage a checker for the assignment of binding checker after completion of 3 years as appealed by the petitioner is not correct. Moreover, the monthly remuneration of a Checker and Binding Checker is same. The only difference is the period of engagement is more or less according to requirement of services as a seasonal staff with the assignment of works for the interest of Kendu Leaves Trade.
(ix) Neither the above order passed achieving an alien purpose or on oblique, and colorable motive not with malafide intention rather the order passed is judicious and in the interest of Kendu Leaves Trade. The Petitioner has not been debarred from his legitimate claim of assignment to the post of Binding Checker rather when his performance is not suitable the action taken by the Opposite Party No.4 is correct and proper. He, accordingly, prays for dismissal of this Writ Petition.
IV. COURT'S REASONING AND ANALYSIS:
6. Heard the learned counsel for the Parties and perused the materials placed before me.
7. The Petitioner has contended that the Promotion Committee was held on 29.04.2016 to fill up the post of Binding Checker. Promotion was given to the juniors of the Petitioner on 21.06.2016. At the time of selection for the Promotion, there was no such confidential report Signature Notagainst the Petitioner and as no point of time he was served with any Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 9 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 such report by any official authority. As per the guideline dated 05.10.2015, it is clear that the Binding Checker in a range shall be recruited from the category of Checker from the same range. In all cases of promotion, seniority and suitability shall be the criteria for selection.
8. As per the letter dated 11.05.2016 issued by the Opp. Party No.2 it was mentioned that checkers shall be eligible to engage as Binding Checker after three consecutive crops year experience as Checker and no restriction was imposed on the plea of performance. But, the authority did not consider his name for the Binding Checker despite him having six consecutive crops years experience.
9. Moreover, the Opposite Party Nos.1 to 5 in their counter affidavit admitted that the petitioner is senior to the Opp. Party Nos.6 to 8 and he was considered for promotion but he was not found suitable. Therefore, the juniors were given promotion. Furthermore, they stated that they have considered the recommendation of Range Officer to test his suitability. But, as per the R.T.I Information, the Range Officer did not send any performance report of seasonal staff 2015-16 till 29.08.2016 which is much after the date of selection. Therefore, the plea of non- selection of the Petitioner due to poor performance and unsuitability cannot be accepted as undisputed truth. The performance report which was not communicated cannot be utilized against the person (like petitioner) concerned just to debar him from promotion. Therefore, the petitioner is entitled to get promotion to the post of Binding Checker from the date his juniors were given promotion i.e. 21.06.2016 with all Signature Notservice and consequential benefits.
Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 10 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23
10. On the other hand, the case of the Opposite Party Nos.1 to 5/ State is that adequate measures have been taken by way of inviting their annual/past performances, their seniority and suitability, requisite qualification amongst the Checkers of the same Range to be engaged as Binding Checker. Though the Petitioner is senior to the Opp. Party Nos.6 to 8 in lieu of date of joining as Checker yet he was not considered suitable to be engaged as Binding Checker based on the report of the Controlling Officer i.e. Range Officer, Athmallik (K.L) Range. The Divisional Committee considering the performance, educational qualification as well as all criteria and recommendation of the Range, Officer, Athmallik (K.L) Range, the name of the Petitioner was excluded including the name of the Krushana Ch. Danta who is pretty senior to the Petitioner. Thus, the order passed by the Opposite Party No.4 vide Office order No.72 dated 21.06.2016 is correct and judicious in the interest of Kendu Leaves Trade.
11. It is further contended that the Petitioner has not been debarred from his legitimate claim of assignment to the post of Binding Checker. Rather, when his performance was not found satisfactory, his case was not considered for promotion and the impugned order was passed by the Opposite Party No.4.
12. It is apparent from the records that this Court, vide order dated 08.09.2022, had directed the learned counsel for the State to produce the recommendation of the Divisional Committee; as referred to in the office order dated 21.06.2016, so also the report of the Controlling Signature NotOfficer as stated in Paragraph-6 of the counter affidavit and other Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 11 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 reports pertaining to the present Petitioner on the next date of listing. On 28.09.2022, though the learned counsel for the State had produced the concerned file bearing photocopy of the documents before this Court, he was directed to file the relevant sheets with regard to recommendation of the Divisional Committee as referred to in the Office Order dated 21.06.2026, so also the report of the Controlling Officer as indicated in the said order dated 08.09.2022 in shape of an affidavit. He was further directed to indicate in the said affidavit as to the status and mode of communication of the said report of the Controlling Officer to the Petitioner, so also basis with regard to disagreeing with the recommendation of the Forest Officer by the Forest Range Officer i.e. Controlling Officer, as indicated in the report dated 29.08.2016. On the next date, learned counsel for the State prayed for ten days time to file better affidavit in terms of the order dated 28.09.2022 passed by this Court and the time was granted.
13. It is further apparent from the order dated 28.03.2024 that the learned counsel for the State was directed to take instruction regarding the fact that if the Petitioner's performance was not satisfactory or his annual performance report was not good, as to why the Petitioner was not intimated by the Authority. It was also the submission of the learned counsel for the Petitioner before this Court on 09.05.2024 that since the Forester had given the Petitioner a good performance report and the Ranger had unilaterally downgraded the grading given by the Forester which should not have been done. The Forester is a person who really Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 12 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 supervises the work of the Checkers from close corner and can assess better than anybody else.
14. Upon a thorough examination of the record, it is found that this Court had directed the learned counsel for the State to specify in the affidavit the status and mode of communication of the Controlling Officer's report to the Petitioner. Furthermore, the counsel was to address the basis on which the Forest Range Officer, acting as the Controlling Officer, disagreed with the Forest Officer's recommendation as indicated in the report dated 29.08.2016. Additionally, the counsel was instructed to explain why the Petitioner was not informed by the Authority if the Petitioner's performance was deemed unsatisfactory or if his annual performance report was unfavorable. However, in the affidavit filed by the Opposite Party Nos.1 to 5/ State, nothing was mentioned about the same. Moreover, in paragraph 5 of the reply to the rejoinder filed on behalf of the Opposite Party Nos.1 to 5/ State, it has been mentioned that "the fact of intimating non-receipt the performance report in course of reply under R.T.I. application is true, but since the keeping the records of performance report of Checkers and other seasonal staff is a policy matter coming under confidential records and kept under the custody of the then Divisional Forest Officer, Athmallik (K.L.) Division, the P.I.O. of this office has no scope to intimate the correct position except to furnish reply that this has not been available". Therefore, admittedly, the Authority had not communicated the performance report to the Petitioner.
15. The learned counsel for the Petitioner also submitted before this Court Signature NotonVerified 09.05.2024 that the Forester had provided the Petitioner with a good Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 13 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 performance report, which the Ranger unilaterally downgraded. The counsel argued that this action was improper, as the Forester, being the person who closely supervises the work of the Checkers, is better positioned to accurately assess the Petitioner's performance.
16. In Dev Dutt v. Union of India and Ors.3 the Apex Court has held that:
"14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry. xx xx xx xx
19. 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, 3 2008 (8) SCC 725 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 14 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23 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 (supra) that arbitrariness violates Article 14 of the Constitution."
17. With respect to the aforesaid discussion and cases cited hereinabove, this Court is inclined to consider the prayer of the Petitioner. Accordingly, the Opposite Party No.4/ Divisional Forest Officer, Athmallik (KL) Division is directed to engage the Petitioner as Binding Checker in Athmallik (K.L.) Range with effect from the date of his juniors have been engaged as Binding Checkers vide Office Order dated 21.06.2016 within a period of three months from the date of presentation of an authenticated copy of this judgment/ order.
18. Accordingly, this Writ Petition is disposed of being allowed.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 24th July ,2024/ B. Jhankar Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 15 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Aug-2024 13:00:23