Orissa High Court
Pramod Kumar Sahoo vs State Of Orissa & Others ... Opposite ... on 7 March, 2024
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9512 of 2018
(An application under Articles 226 & 227 of the
Constitution of India)
Pramod Kumar Sahoo ... Petitioner
-versus-
State of Orissa & others ... Opposite Parties
For Petitioner : Mr. P.K. Rath, Sr. Advocate;
Mr. J.K. Rath, Sr. Advocate &
Mr. B. Routray, Sr. Advocate
(Amicus Curiae)
For Opposite Parties : Mr.A.K. Nanda, AGA
(O.P. Nos.1 to 3)
Mr. D. Mohapatra, Advocate
(O.P. Nos.4 to 9)
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :08.12.2023
DATE OF JUDGMENT:07.03.2024
G. Satapathy, J.
1. The petitioner by filing this writ petition has questioned the selection proceedings of the Departmental Promotion Committee (DPC) dated 31.03.2017 rejecting his claim for promotion to the post of Senior Secretary and consequential promotion of O.P. Nos. 4 to 9 under Annexure-3 series as well as W.P.(C) No.9512 of 2018 Page 1 of 49 further seeking for a direction in the nature of mandamus to O.P. No.2 to promote him to the post of Senior Secretary from the date of the promotion of his juniors maintaining his position in the earlier Gradation List with consequential service and financial benefits including further promotion to the post of Additional Principal Secretary along with others by quashing the above proceedings of the DPC and order of promotion to O.P. Nos. 4 to 9 as well as the rejection order on his representation as communicated to him vide Letter No.3111 dated 23.03.2018 in exercise of extraordinary powers of writ jurisdiction under Articles 226 & 227 of the Constitution of India.
2. Briefly stated, the petitioner's case is, he having qualification of B.Sc. Physics (Honours) with requisite skill of Stenography was appointed as Junior Stenographer on 01.03.1989 in a due selection process and after joining in the High Court on 19.02.1990, he was promoted to the post of Senior Stenographer and thereafter, he was also promoted to the post of Personal Assistant on 03.09.1996. While continuing in the post of Personal Assistant, his service W.P.(C) No.9512 of 2018 Page 2 of 49 was confirmed as a Government Employee on 01.04.1997 and thereafter, he was promoted to the post of Secretary on 16.05.2008. Further, his name was found maintained at serial No.1 in the Gradation List of Secretary as on 31.03.2017 and in order to fill the consequential vacancies, a notice was issued by OP No.3 on 25.03.2017 for conduct of interview of the eligible Secretaries for consideration of promotion and filling of six posts of Senior Secretaries by the DPC consisting of two respectable Judges, Registrar General and Registrar Administration, High Court of Orissa on 31.03.2017 and accordingly, ten numbers of Secretaries including the petitioner and O.P. Nos.4 to 9 were called to attend the DPC meeting on 31.03.2017 and in such meeting of the DPC where up- to-date CCRs of the eligible candidates were placed for consideration. However, notification was issued on the same day promoting only O.P. Nos. 4 to 9 as Senior Secretaries ignoring the petitioner, even though he was senior most in the cadre of Secretary and he was no way inferior on merit from any of his juniors. According to the petitioner, the promotion of the W.P.(C) No.9512 of 2018 Page 3 of 49 employees of Orissa High Court including the post of Senior Secretary is governed by Orissa High Court (Appointment of Staff and Conditions of Service) Rules, 2015 (in short the "Rules, 2015") and Rule 13 of the Rules, 2015 provides the procedure for promotion wherein it has been made abundantly clear that in order to be considered for promotion to the post of Senior Secretary, a Secretary should have the educational qualification of Bachelor Degree in any discipline from a recognized University and should have minimum experience of five years working as Secretary and the mode of promotion prescribed therein is to be governed by "merit with due regard to seniority and suitability", but no test was conducted by the Authority concerned to adjudge the merits of the candidates nominated for promotion, however, the members of DPC put few questions to the nominated candidates including the petitioner in the interview which was nothing to do with merit. According to the petitioner, he has got an unblemished service record with no adverse entry in his CCR and due to illegal, arbitrary and whimsical decision of the DPC, he has W.P.(C) No.9512 of 2018 Page 4 of 49 suffered a stigma in his service career because his juniors have been promoted ahead of him. It is further pleaded in the writ that although the decision of the DPC was not communicated to the employee concerned, but the petitioner unsuccessfully applied for such information under R.T.I. According to the Rules for promotion to the post of Additional Principal Secretary, one should have minimum educational qualification of Bachelor's Degree in any discipline from a recognized University or such other qualification equivalent thereto and having good knowledge in Hindi and English and he is a fit person to hold the post in the opinion of the Hon'ble Chief Justice and such promotion is to be made from the post of Senior Secretary basing on "merit with due regard to seniority and suitability" and adhering to the Rules, 2015. It is further claimed by the petitioner in the writ that the earlier DPC held on 15.07.2016 did not consider the case of Sri Jadunath Sahu and Pradeep Chandra Pradhan, Senior Secretaries of the Court for promotion to the post of Additional Principal Secretary for want of minimum eligibility qualification, W.P.(C) No.9512 of 2018 Page 5 of 49 but Sri P.H. Palai, who was junior to both Sri Sahu and Sri Pradhan was considered and promoted to the post of Additional Principal Secretary along with another pursuant to the DPC held on 15.07.2016 only because they have Graduation Degree and otherwise fulfilled the criteria, but surprisingly in the current DPC held on 31.03.2017, O.P. Nos. 4 & 5 having qualification of I.A. and I.Com have been promoted by deviating the Rules of 2015 and ignoring the rightful claim of the petitioner. According to the petitioner, for promotion, independent assessment of merit and ability of an employee should be prime consideration of the authority and in order to assess the merit, the DPC ought to have cross-verified the CCR or the record of the employees, besides holding a test for the purpose, but in the instant case, the Authority has not considered the CCRs of the candidates nor has any of the candidate being asked to show his ability before them. Being aggrieved by the decision of DPC recommending promotion to O.P. Nos.4 to 9, the petitioner moved a representation before the Hon'ble Chief Justice on 06.04.2017, but to his utter surprise, W.P.(C) No.9512 of 2018 Page 6 of 49 O.P. No.3 communicated the decision of rejection of his representation after one year vide Letter No.3111 dated 23.03.2018 and the Authority concerned while rejecting his representation did not give any finding instead of communicating the decision in the aforesaid letter dated 23.03.2018 which is otherwise liable to be quashed on the very same ground. Further, the petitioner claims that he has every reason to believe that the DPC has taken some extraneous materials into consideration which dehors the Rules and there may be some allegation at some level made against him with ulterior motive by some vested person and/or at the instance of the juniors, who have been favoured with promotion in order to get rid of the petitioner from the zone of consideration of promotion and the DPC ought to have acted fairly in accordance with law, but the DPC has not considered his case for promotion on extraneous consideration, even though he is the senior-most Secretary in the cadre. Further, it is stated by the petitioner in the writ that in the meantime, steps have been taken to give promotion to the next higher grade of Senior Secretary i.e. Addl. W.P.(C) No.9512 of 2018 Page 7 of 49 Principal Secretary from amongst the Senior Secretaries and O.P. Nos.4 to 9 who have been promoted ignoring the case of the petitioner are now going to be considered for promotion to the post of Addl. Principal Secretary, whereas the petitioner is still languishing as Secretary. While praying for the relief indicated in the preceding paragraph, the petitioner has claimed that when the earlier DPC had not considered the case of Jadunath Sahu and Pradeep Kumar Pradhan for promotion due to change in the eligibility qualification as per Rules, 2015, the present DPC should not have recommended O.P. Nos. 4 & 5 for promotion to the post of Senior Secretary for want of educational qualification prescribed for the post of Senior Secretary.
3. In response to the notice of the writ of the petitioner, only O.P. Nos. 2 & 3 have jointly filed the counter affidavit stating inter alia that the DPC which was constituted by the Hon'ble Chief Justice in terms of Rule-13(d) of the Rules, 2015 had duly considered the case of the petitioner and found him unsuitable along with another for promotion by adjudging the W.P.(C) No.9512 of 2018 Page 8 of 49 merit of the petitioner vis-à-vis others as well as considering the service records, performance and personal interview of all the participant Secretaries in the meeting dated 31.03.2017. It is also alleged in the counter affidavit by O.P. Nos. 2 & 3 that allegations had been received against the petitioner for collecting money illegally from the litigants and misusing the official position for personal gain and the petitioner while being the Secretary to Miss. Justice S. Panda was let off with a warning in D.P. No.01 of 2012. The counter affidavit further reveals that the petitioner had made a representation on 06.04.2017 to consider his case for promotion and to restore his seniority, but such representation of the petitioner was rejected since his case had already been considered by the DPC. It is further claimed in the counter affidavit by OP Nos. 2 & 3 that only on the basis of seniority, promotion cannot be claimed by the petitioner and the CCRs and personal files of all the candidates including the petitioner had been properly and thoroughly assessed by the DPC in the meeting for promotion and the petitioner has to establish as to how and on what W.P.(C) No.9512 of 2018 Page 9 of 49 basis, he claims the other candidates to be less meritorious than him. While reiterating that the Rules, 2015 has been duly followed by the DPC O.P. Nos. 2 & 3 have claimed in the counter affidavit that the writ petition is devoid of merit and is liable to be dismissed.
4. In response to the aforesaid counter affidavit, the petitioner has filed his rejoinder reiterating his claim in the writ and inter alia clarifying the dictionary meaning of the "aptitude" by denying the claim of O.P. Nos. 2 & 3 in the counter affidavit. In such rejoinder, in response to the D.P. No.01 of 2012, the petitioner has stated that he was charge sheeted on the allegation for typing out a wrong order in the order sheet which amounts to absence of loyalty and devotion and tantamount to misconduct and liable for violation of Rule 3(b) and 4 of the Orissa Government Servant Conduct Rules, 1959 (in short the "Conduct Rules"), however, he was let off with a warning and the proceeding was closed and thereby, according to him it cannot be construed as a punishment either major or minor under the Rules and he ultimately W.P.(C) No.9512 of 2018 Page 10 of 49 claims that any punishment against him prior to five years of holding DPC cannot be utilized against him and thereby, the order passed in D.P. No.01 of 2012 is of no consequence. It is further claimed by the petitioner in the rejoinder that in all fairness, he should have been supplied with the information as sought for by him in order to show the bonafide and transparency of the Authority in the matter of promotion.
5. In the course of hearing of the writ, this Court has sought for the assistance of Mr. J.K. Rath and Mr. B. Routray, learned Senior Counsels in the matter and accordingly, the learned Senior Counsel Mr. J.K. Rath and Mr. B. Routray have rendered their valuable assistance to the Court in the matter. This Court has, however, heard all the counsels appearing for the respective parties in the matter.
6. In the course of hearing of the writ, Mr.P.K.Rath, learned Senior Counsel appearing for the petitioner has submitted that the petitioner is the senior most Secretary in the Gradation List of the Secretary and while considering the promotion to the W.P.(C) No.9512 of 2018 Page 11 of 49 post of Senior Secretary, Rule 13 of the Rules 2015 has to be followed and in such Rules, the minimum qualification for Senior Secretary has been fixed as Bachelor Degree in any discipline from a recognized University or such other qualification equivalent thereto and the mode of promotion to the said post is on the basis of "merit with due regard to seniority and suitability", but the 2015 Rules does not prescribe as to how to assess merit and suitability of the candidate and thereby, Rules 2015 do not empower the Authorities to conduct an interview to adjudge the merit of a candidate, but the DPC has conducted personal interview of the Secretaries nominated for consideration of promotion to assess their merit and suitability, even though the Rule does not provide for it. Mr.Rath has further submitted that in absence of Rules governing to assess the merit and suitability of the candidates, the Orissa Civil Services (Criteria for Promotion) Rules, 1992 (in short the "Rules, 1992") will be applicable to adjudge the merit and suitability of the candidates and Rule 3(c) therein prescribes that in order to adjudge the suitability of an officer for W.P.(C) No.9512 of 2018 Page 12 of 49 promotion, the Selection Board shall scrutinize the preceding five available Annual Confidential Character Rolls (ACCR)/Performance Appraisal Report and other documents, if any, having bearing 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, but even in the backdrop of aforesaid Rules, 1992, the DPC conducted personal interview and declared the petitioner as unsuitable and recommended the name of OP Nos. 4 to 9 as suitable for promotion to the cadre of Senior Secretary which is contrary to the principle of promotion. It is further submitted by Mr.Rath, out of the six candidates recommended for promotion, serial Nos. 1 & 2 who are OP Nos. 4 & 5 herein have been recommended for promotion to the Senior Secretary despite not having minimum eligibility criteria of Educational Qualification and thereby, the promotion of the Juniors of the petitioner to the post of Senior Secretary is contrary to Rule. In order to buttress his submission for conducting personal interview by DPC to adjudge the merit of W.P.(C) No.9512 of 2018 Page 13 of 49 candidates to be contrary to the principle, Mr.Rath, learned Senior Counsel has relied upon the decisions in (i) Babu Verghese and others vrs. Bar Council of Kerala and others; (1999) 3 SCC 422(paragraph-31), (ii) Ramesh Kumar vrs. High Court of Delhi and another; (2010) 3 SCC 104(paragraph-13 & 14), (iii) Dr. Krushna Chandra Sahu and others vrs. State of Orissa and others; AIR 1996 SC 352 (paragraph-35, 36 & 37), (iv) Mohd. Sohrab Khan vrs. Aligarh Muslim University and others; (2009) 4 SCC 355 (paragraph-30 & 31) and (v) Secretary, A.P. Public Service Commission vrs. B.Swapna and others; (2005) 4 SCC 154 (paragraph-15). In addition, Mr.Rath has further submitted that in case of variance of selection process from Rules, Rules will prevail, but not the selection method and in support of such contention, he has relied upon the decisions in (i) Ashish Kumar Vrs. State of Uttar Pradesh and others; (2018) 3 SCC 55 (paragraph-27), (ii) Employees' State Insurance Corporation(ESIC) vrs. Union of India and others; (2022) 11 SCC W.P.(C) No.9512 of 2018 Page 14 of 49 392(paragaraph-20 & 22). Mr.Rath has further submitted that even though the petitioner has unsuccessfully participated in the selection process, but he still can challenge the selection process if the same is not in accordance with or contrary to the Rules. In support of such contention, he has relied upon the decision in (i) Krishna Rai (dead through LRs and others) vrs. Banaras Hindu University through Registrar and others; 2022 Live Law(SC) 553(paragraph-23). Further, Mr.Rath has submitted that in the circumstance, the principle of estoppel cannot shut the mouth of the petitioner to challenge the selection procedure as undertaken by the DPC on 31.03.2017 merely because he was unsuccessful in the selection process of the promotion in view of the law laid down in ESIC(supra). It is also submitted by the learned counsel for the petitioner that the recommendation of the DPC to promote OP Nos. 4 & 5 who have no minimum eligibility Educational Qualification to hold the post of Senior Secretary, suffers from illegality and violates the mandate of law and such recommendation eventually granting W.P.(C) No.9512 of 2018 Page 15 of 49 promotion to OP Nos. 4 & 5 is liable to be set aside on this very ground. In support of such contention, Mr.Rath has relied upon the decisions in (i) R.Prabha Devi and others vrs. Government of India and others; AIR 1988 SC 902(paragraph-15), (ii) SGT Chaman Lal vrs. Union of India and others; AIR 2017 SC 3533(paragraph-19), (iii) State of M.P. and another vrs. Dharam Bir; (1998) 6 SCC 165 (paragraph-18 to 20, 28 & 30 to 32), (iv) Palure Bhaskar Rao and others vrs. P.Ramaseshaiah and others; (2017) 5 SCC 783 (paragraph-18) and
(v) Madhya Pradesh Electricity Board, vrs.
S.S.Modh and others; AIR 1997 SC 3464(paragraph 18 to 20). In addition to the above contention, Mr.Rath has further submitted that the rejection of representation of the petitioner vide Annexure-6 without assigning any valid reason is violative of principle of natural justice and liable to be set aside. (The relevant paragraphs as relied on are mentioned against each of the decisions in bracket.)
7. In repelling the submissions advanced on behalf of the petitioner, Mr. A.K. Nanda, learned W.P.(C) No.9512 of 2018 Page 16 of 49 Additional Government Advocate appearing for Opposite Party Nos.1 to 3 has submitted that since the petitioner having participated in the selection process for promotion to the post of Senior Secretary without any demur or protest cannot challenge the same afterwards for having been declared unsuccessful and had there been any objection to the procedure undertaken for promotion, the petitioner would not have participated in the subsequent selection process for promotion after having remained unsuccessful for getting promotion in the DPC. It is further contended by learned AGA that the petitioner has challenged the DPC held on 31.03.2017, but the petitioner is actually estopped from challenging the DPC held on 31.03.2017 for the reason as stated. Mr. Nanda has further submitted that the mode for promotion as prescribed is "merit with due regard to seniority and suitability" and, thereby, merit comes first and, thereafter, seniority and suitability, but merit of a person can be assessed by taking into consideration the overall performance of the candidate having nexus to the promotional post and no inflexible Rules or W.P.(C) No.9512 of 2018 Page 17 of 49 procedure can be fixed for the Promotion Committee to adopt while assessing merit of the candidate which should be considered by the Authority not only on his efficacy, but also on his ability to discharge the function of the promotion post with utmost sincerity & devotion and therefore, in absence of any Rules on the issue of determining merit, the Promotion Committee can formulate the determinative factor to assess the merit of the candidates by taking into consideration the duty and responsibility attached to the post, but while considering suitability of such candidates, his conduct is also paramount consideration before the Committee and if a person whose integrity is doubtful should not be considered as "suitable" for promotion. Mr. Nanda has further submitted that in this case, the petitioner is also found to have mis-conducted in fabricating the order dictated by the Court and he was accordingly let off with warning in DP No.1 of 2012 in which he was charged for typing out orders which was not dictated by the Court and the aforesaid "conduct" itself demonstrate/speaks high against the petitioner to render him unsuitable for promotion and, thereby, W.P.(C) No.9512 of 2018 Page 18 of 49 the recommendation of the DPC in not selecting the petitioner for promotion is on the basis of sound logic and reason. Mr. Nanda has further submitted although the petitioner challenges the promotion of OPNos.4 and 5 for want of Educational Qualification so as to render them ineligible for promotion, but the Rules 2015 is very much clear that the Chief Justice in exercise of power under Rule 13(e) may dispense with any of the requirements for promotion and he may relax or dispense with any of the provisions of Rules, 2015 on administrative exigencies and, therefore, the minutes of the Proceeding of DPC dated 31.03.2017 having been duly endorsed by the Chief Justice, the promotion of OPNos.4 and 5 cannot be questioned. While relying upon the decisions in (i) Tajvir Singh Sodhi and others Vrs. The State of Jammu and Kashmir and others; 2023 LiveLaw (SC) 253 (paragraphs-13 & 14) and (ii) Manish Kumar Shahi Vrs. State of Bihar and others; (2010) 12 SCC 576(para-16), Mr. Nanda, learned AGA has prayed to dismiss the writ petition.
W.P.(C) No.9512 of 2018 Page 19 of 49
8. Mr. D. Mohapatra, learned counsel appearing for OPNos.4 to 9 while reiterating the provision of Rule 13(e) and Rule 20 of the Rules, 2015 has submitted that the promotion of OPNos.4 to 9 being in accordance with law cannot be questioned by the petitioner. Mr. Mohapatra, accordingly, has prayed to dismiss the writ.
9. Mr. J.K. Rath and Mr. B. Routray, learned Senior Counsels appearing to assist the Court have jointly submitted before this Court that the judgment rendered in Jadunath Sahu Vrs. State of Orissa; 2020 (II) ILR, Cuttack, 197 having rightly rendered governing the principle of promotion is also applicable to the case at hand.
10. The net consequence of the rival submissions upon careful consideration of the averments made in the writ, counter affidavit and rejoinder to counter affidavit gives rise to the following questions for determination of this Court:-
(i) Whether the DPC held any personal interview of eligible Secretaries on 31.03.2017 pursuant to the notice dated 25.03.2017 to adjudge their merits for W.P.(C) No.9512 of 2018 Page 20 of 49 consideration of promotion to the post of Senior Secretaries? and if yes, the same vitiates the decision of DPC and cannot sustain in the eye of law.
(ii) Whether the DPC erroneously had not recommended the name of the petitioner for promotion to the post of Senior Secretary?
(iii) Whether the petitioner having already participated in the selection process for promotion can challenge the same?
(iv) Whether the rejection of representation of the petitioner under Annexure-6 can be considered to be without any reasoning and thereby, it cannot sustain in the eye of law?
(v) Whether the DPC in such meeting had recommended the names of any of the ineligible candidates, such as OP Nos. 4 & 5 for want of prescribed Educational Qualification for promotion to the post of Senior Secretary?
11. A careful reference to the questions so formulated above, it appears to the Court that the claim of the petitioner is divided into two parts; firstly, matters relating to refusal of promotion to the W.P.(C) No.9512 of 2018 Page 21 of 49 petitioner and secondly, the matter of recommendation of the name of OP Nos. 4 & 5 for promotion to the post of Senior Secretary in violation to the Rules, 2015. Thus, let us consider the first claim of the petitioner for promotion which involves the questions as formulated under (i) to (iv). It was claimed by the petitioner that the holding of personal interview by the DPC being contrary to the Rule, 2015, the proceeding of the DPC itself is violative and cannot sustain in the eye of law. In order to answer such claim of the petitioner, a brief reference to the basic Rules and Provision having application for promotion shall be apposite. Alive to the indisputable Rule 13 of the Rules 2015, it appears that the mode of absorption to the post of Senior Secretary is by way of promotion from the post of Secretary basing on the "merit with due regard to seniority and suitability", but the petitioner lays much emphasis on his seniority as number one in the Gradation List of Secretary for being considered for promotion. The principle of "seniority" is conceptually different from the principle "merit and due regard to seniority and suitability" W.P.(C) No.9512 of 2018 Page 22 of 49
inasmuch as in the later case, emphasis is more on merit and ability, than seniority and suitability and, thereby, promotion in the case of "merit with due regard to the seniority and suitability" is not automatic with reference to the seniority alone and merit would play a significant role and in such case, merit is the deciding/determinative factor. In this regard, this Court considers it profitable to refer to the decision in Balbir Singh Bedi Vrs. State of Punjab and others; (2013) 11 SCC 746 wherein the apex Court has held at paragraph-16 that the principle of "seniority-cum-merit" and "merit-cum-seniority" are conceptually different, as in the case of the former, there is greater emphasis upon seniority, even though the same is not the deciding factor, while in the case of the later, merit is the deciding/key factor. In the context of promotion what cannot be lost sight of is that the principal object of promotion is to secure the best possible incumbents for the higher responsibility/post while maintaining the moral of the whole organization and the main interest to be served is the public interest, nor the personal interest of the W.P.(C) No.9512 of 2018 Page 23 of 49 members of the official/employee. The public interest is best secured when reasonable opportunity for promotion exists for all the qualified employees and they be considered in terms of their "merits with due regard to seniority and suitability" which enable the employer to select the best person to hold the promotional post by taking into consideration all the three factors like merit, seniority and suitability in combination, but it is very much difficult to assess the merit and suitability of the candidates, no matter there is hardly any difficulty in determining the seniority.
What constitute "merit" has not been precisely defined in the Rules, 2015, but five decades ago, in Guman Singh Vrs. State of Rajasthan and others; 1971 (2) SCC 452; a constitutional Bench of apex Court has taken pain to interpret the term "merit" by observing in paragraph-35 as under:
"No doubt the term 'merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality in work, quality and outturn of work done by him W.P.(C) No.9512 of 2018 Page 24 of 49 and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer, if carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer."
In Guman Singh (supra), it has been further held in paragraph-35 that when it comes to a question of merit, not only those factors but also certain additional factors and circumstances will have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of responsible, senior and experienced officers of the State. While considering the merit of the candidates, his initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, dealing with others, adaptability, ability to take decision and intellectual and moral integrity are also relevant consideration which can of course be ascertained by the DPC or Board during interaction/interview with the candidate considered for promotion.
W.P.(C) No.9512 of 2018 Page 25 of 49
12. In the line of aforesaid observation made in the decision in Guman Singh (supra), the DPC herein was consisted of two sitting Judges of the High Court then along with Registrar General and Registrar Administration and, thereby, it is cocksure that the DPC was consisted of very responsible and high reputed Judges of the High Court along with Senior Officers in the cadre of District Judge with unquestionable integrity. Admittedly, the Rules, 2015 does not prescribe the mode and manner of assessing "merit and suitability" of the eligible candidates called to attend the DPC, but learned counsel for the petitioner has made reference to the Rules, 1992 for assessing the merit, but Rule 3 of such Rules provides for criteria for promotion which reads as under:
3. Criteria for promotion "(a) all promotion to the posts or grades of different Services/Civil Posts under the State Government shall be made by selection;
(b) selection for such promotion shall be made on the basis of merit and suitability in all respect with due regard to seniority and the names of persons included in the Select List shall be arranged in order of seniority in the feeder service or grade:
Provided that any Junior officer of exceptional merit and suitability may be assigned a place higher than his seniors and in W.P.(C) No.9512 of 2018 Page 26 of 49 such case the assignment of higher position to the junior officer shall be limited to the same batch or year of allotment except where an officer of the earlier batch or year of allotment is found unsuitable for promotion:
Provided further that where promotion is made from different services or posts and no common seniority among such officers exists, their names in the Select List shall be arranged on the basis of their merit adjudged during selection.
[Explanation - The expression "batch or year of allotment means the calendar year of the select list on the basis of which an officer is promoted to the higher rank."]
(c) In order to judge the suitability of an officer for promotion, the Odisha Public Service Commission, the Departmental Promotion Committee, the Selection Commission or Selection Board, as the case may be, shall scrutinise preceding five available annual Confidential Character Rolls (Performance Appraisal Reports (PARS)] 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 [Performance Appraisal Reports (PARS)] (C.C.Rs./[P.A.Rs]) taken into consideration for promotion as above shall include C.C.Rs' /[(P.A.Rs.)] covering at least a period of three years in preceding five years.") [NOTE 1- 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.Rs. /[(P.A.Rs.)] or service records. W.P.(C) No.9512 of 2018 Page 27 of 49
NOTE II- The expression "preceding five years" means the five years preceding the year which the officer's performance is, in accordance with the relevant Recruitment Rules, first evaluated.]"
In the aforesaid Rules, 1992 also there is no standard fixed for assessing the merit, however, since the Rules, 2015 governs the Rules to regulate the recruitment and conditions of service of the person appointed to the various posts in the High Court of Orissa which prescribes the mode of promotion in Rule
13 of 2015 Rules and, therefore, the Rules, 1992 cannot be made wholly applicable to the employees of the High Court since promotion to the post in the aforesaid Rules, 1992 is on the basis of "merit and suitability in all respect with due regard to seniority", but in case of the Rules, 2015 promotion is on the basis of "merit with due regard to seniority and suitability". In the context of holding an interview to adjudge the merit of the candidate, what is pleaded by the petitioner in the writ is different from what he argued before this Court, since the petitioner has never objected to holding of an interview by the DPC in his entire pleadings in the writ, but he came up with W.P.(C) No.9512 of 2018 Page 28 of 49 objection to such interview for the first time in the course of the argument after more than five years of filing of the writ petition. The Apex Court has, however, laid down in paragraph-22 in Harigovind Yadav Vrs. Rewa Sidhi Gramin Bank and others; 2006 (6) SCC 145 that interviews can be held and assessment of performance can be made by the Bank in connection with promotions, but that can be only to assess the minimum necessary merit. On the other hand, the petitioner has relied upon the decisions in Babu Verghese(supra), Ramesh Kumar(supra), Dr. Krushna Chandra Sahu(supra), Mohd. Sorhab Khan(supra) and Secretary, A.P. Public Service Commission (supra) which in the circumstance are not applicable to this case inasmuch as none of the case deals with promotion matter and the conducting of interview in none of the cases has been considered to be violative of the principle of promotion, rather all the cases have been rendered on the issue of recruitment processes and relaxing qualification. It is, therefore, very clear that neither the petitioner has pleaded nor established that conducting personal W.P.(C) No.9512 of 2018 Page 29 of 49 interview is contrary to the Rule and no provision of the Rules or law laid down by any constitutional Court has been brought to the notice of the Court to hold that the issuance of notice under Annexure-1 directing the petitioner and others to appear for interview is violative of the Rules of promotion. Even otherwise, it is found from the pleadings in the writ that the petitioner claims for holding any test to adjudge the merit before going to seniority and suitability and he further states in the writ that no test was conducted to adjudge the relative merit save and except the members of the DPC directed the petitioner to appear in the interview putting him few questions which has nothing to do with the merit and, therefore, taking into the admitted pleadings of the petitioner, even if the DPC has conducted any interview, it is purely to assess the merit on the basis of the interaction as claimed to be interview by the petitioner. Further, the criteria for selection for promotion is not a subject to challenge generally as it falls within the area of the Promotion Committee, especially when the Rules does not precisely define "merit or suitability" and the criteria W.P.(C) No.9512 of 2018 Page 30 of 49 for adjudging the claims on the basis of principle of "merit and suitability" depends upon various factors which depend upon the class, category and nature of the post in the hierarchy of administration and the same must be in conformity with efficiency required for the post. Law is also well settled that while making promotion, the totality of service record of the officer concerned has to be taken into consideration.
13. In Rupa Rani Rakshit and others Vrs.
Jharkhand Gramin Bank and others; (2010) 1 SCC 345 it has been held that the minimum merit necessary for promotion to the said post may be assessed either by subjecting candidates to a written examination, or an interview, or by assessment of their work performance during the previous years, or by a combination of either of the above, or all the aforesaid methods.
13.1. In Madan Lal and others vrs. State of J & K and others; (1995) 3 SCC 486, it has been held as under:-
"10. Therefore, the net result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who W.P.(C) No.9512 of 2018 Page 31 of 49 ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of Appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urged before us that they were given less marks though their performance was better. It is for the interview committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interview, in the light of guidelines laid down by the relevant Rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a Court of Appeal over the assessment made by such an expert committee".
13.2. In Union of India vrs. A.K.Narula; (2007) 11 SCC 10, the Apex Court has observed as under:-
"15. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, malafide and arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable matter, by applying the same yardsticks and norms to all candidates and there is no arbitrariness in the W.P.(C) No.9512 of 2018 Page 32 of 49 process of assessment by the DPC, the Court will not interfere".
13.3. In Union of India and another vrs.
S.K.Goel and others; (2007) 14 SCC 641, the Apex Court has held that:-
"31.DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence interference by High Court is not called for".
13.4. In State of Bank of India and Others Vrs. Mohd. Mynuddin; (1987) 4 SCC 486, wherein the Apex Court has been held as under:-
"(5) Whenever promotion to a higher post is to be made on the basis of merit, no Officer can claim promotion to the higher post as a matter of right by virtue of seniority alone w.e.f. the date on which his juniors are promoted. It is not sufficient that in his confidential reports, it is recorded that his service are 'satisfactory'.
An Officer may be capable of discharging the duties of the post held by him satisfactorily, but he may not be fit for the higher post.
Before any such promotion can be affected, it is the duty of management to consider the case of the Officer concerned on the basis of the relevant materials".
13.5. In State of Bank of India(supra), the Apex Court has also further held that:-
"The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, Office or duty of every kind of the post in the modern world and it would be hazardous for it to W.P.(C) No.9512 of 2018 Page 33 of 49 undertake the responsibility of assessing whether a person is fit for being promoted to higher post which is to be filled up by selection. The duties of such post may need skills of different kinds-scientific, technical, financial, industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have knowledge of the requirements of a given posts to be nominated by the employee, of course, the process of selection adopted by them should always be honest and fair".
14. What is the cumulative effect of the discussions made hereinabove is that the contention of the petitioner that holding personal interview for promotion to the post of Senior Secretary is violative of the promotion Rule is not acceptable and merits no consideration.
15. Law is no more res-integra that the right to be considered for promotion is an right of the employee, but right to promotion of the employee is not a vested right. Merely because the person is senior most in the Gradation List would not entitle him to the promotion, unless he further satisfies the other criteria as fixed by W.P.(C) No.9512 of 2018 Page 34 of 49 the Authority(DPC), when the mode of the promotion is on the basis of "merit with due regard to seniority and suitability" and, therefore, the employee's right to the promotion is circumscribed by the other two factors i.e. 'merit' and 'suitability' and that too, merit is predominant consideration. An employee may be meritorious, but if he is not suitable for promotion owing to some reason, he is not entitled to promotion as a matter of right. Further, the suitability is a matter of opinion and may be a combination of different factors, such as integrity, fitness, punctuality and capacity to work etc. In the matter of promotion, it is always open to the employer to specify the parameter and weightage to be given in respect of 'merit' and 'suitability'. In absence of any specific Rules laying down the parameters and factors to be considered for 'merit' and 'suitability', it is open for the Selection Board/DPC to consider the case of the candidates called for consideration of the promotion by taking into account different factors relating to the performance of the candidates and the nature of work required for the promotional post to serve out the general public, but W.P.(C) No.9512 of 2018 Page 35 of 49 whimsical and arbitrary action of the Selection Board/DPC is always open to challenge before the Court of law, and if the decision of such Selection Board/DPC is not actuated with any malafide or malice, the same cannot be challenged or thrown out of the purview of selection. A careful glance of the averments made in the writ petition, nowhere this Court finds any arbitrary action of the DPC, but on the other hand, the principle of pleading requires the person knocking the door of the Court to plead and establish his claim before the Court of law. In this case, the petitioner has not only imputed against the members of the DPC which includes two respectable sitting Judges then of this Court as well as Senior Officers in the cadre of District Judge, by averring that the DPC illegally has not considered his case for promotion with some extraneous materials in order to deprive him from his legitimate promotion and such imputation by the petitioner in the writ has been repeated more than once by saying that the DPC has taken some extraneous materials into consideration, but the petitioner has failed to establish such fact of W.P.(C) No.9512 of 2018 Page 36 of 49 DPC taking any extraneous material into consideration and, thereby, making imputation against the DPC speaks about the conduct of the petitioner. True it is that the petitioner can challenge the order of the DPC before legal fora, but he certainly cannot made allegation against the DPC without any legally admissible material. Conduct is also one of the factors to be taken into consideration, while adjudging the suitability of the petitioner for promotion. Besides, the petitioner in his rejoinder to the counter affidavit has stated that he has unblemished CCR with high recommendation, but he has clarified in such rejoinder that DP No.1 of 2012 was initiated against him and he was charge-sheeted on the allegation that he typed out a wrong order in the order sheet which amounts to absence of loyalty and devotion and tantamount to misconduct and after enquiry in such proceeding, he was let off with an warning and the proceeding was closed. In this context, it is to be reminded that the post of Secretary or Senior Secretary attaches not only the quality of sincerity, responsibility, but also confidentiality since the Secretary/Senior Secretary is W.P.(C) No.9512 of 2018 Page 37 of 49 supposed to work with Judges of the High Court and, thereby, the integrity and confidentiality of such Secretary has to remain above board, but the petitioner being let off with an warning in a matter relating to typing out a wrong order cannot be considered lightly or brushed aside as it demolishes the conduct of such employee as well as the confidentiality which are very much relevant for considering the suitability of the petitioner for promotion.
16. This Court has no doubt about the principle that an employee can challenge the selection process for promotion, but once he having taken part in the selection process without any protest cannot afterwards normally challenge the same after having been declared unsuccessful, which is reiterated by the Apex Court in the judgment in Tajvir Singh Sodhi(supra). It is no doubt that the petitioner has relied upon in Ashish Kumar(supra) and the Employees State Insurance Corporation(supra) to contend that the entire selection process adopted by DPC being contrary to mandate of Rules is without W.P.(C) No.9512 of 2018 Page 38 of 49 jurisdiction and liable to be quashed, but the principle decided in these two relied on cases being related to recruitment process and eligibility conditions contained in advertisement has no application in the context of consideration for promotion of the petitioner. On the other hand, the decision as relied on by the petitioner in Krishna Rai (supra), it is held by the Apex Court that the principle of estoppels cannot override the law and this Court is duty bound to accept such proposition of law as laid down by the Apex Court, but in this case, the contention of learned Additional Government Advocate is that the petitioner having already participated in the selection process without any protest cannot challenge such selection after becoming unsuccessful and thereby, the decision relied on by OP Nos. 1 to 3 in Tajvir Singh Sodhi(supra) is factually different from the decision in Krishna Rai (supra). This Court, however, believes that the decision of the DPC should not ordinarily be interfered with, unless it is actuated with malafides or bias. In this regard, this Court considers W.P.(C) No.9512 of 2018 Page 39 of 49 is apposite to refer to the decision in State of Bank of India(supra), wherein it has been held as under:-
"5.xx xx If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the Officer concerned for promotion, but it cannot issue a direction to promote the Officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view.
17. In U.V. Mahadkar Vrs. Subhash Anand Chavan and others; (2016) 1 SCC 536 it has been held by the Apex Court that in the matter of selection and promotion to the higher post, if a Committee of experts is constituted then normally, the Court should not interfere in such decision unless malafides are attributed or allegations of arbitrariness are proved. In the aforesaid decision, the Apex Court while concluding has observed that High Court should not have entered into the arena of experts and to reassess the merit of the candidates when it is finally decided by a duly constituted Committee of experts in the same field. In UPSC Vrs. L.P.Tiwari and others; (2006) 12 SCC 317, the Apex Court has observed that it is now more or less well settled that the W.P.(C) No.9512 of 2018 Page 40 of 49 evaluation made by an expert committee should not be easily interfered with by the Court which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. In Ashok Kumar Vrs. State of Bihar; (2017) 4 SCC 357, the Apex Court has held in paragraph-18 of the judgment that it is settled law that a person who consciously take part in the process of selection cannot thereafter, turn around and questioned the method of selection and its outcome.
18. On a cumulative assessment of discussions made hereinabove in the backdrop of reference to the legal pronouncements referred to above, this Court has no hesitation to consider that the petitioner can only challenge the selection process for promotion by successfully proving that the DPC had in fact acted arbitrarily and its decisions were actuated with malafides, but the petitioner neither could able to plead any arbitrariness or malafides of the DPC nor could establish such allegation that the DPC acted in utter disregard to the merit and suitability of the petitioner by recommending the names of other W.P.(C) No.9512 of 2018 Page 41 of 49 persons for promotion ignoring the case of the petitioner. Thus, the petitioner questioning the legality of decision of the DPC not recommending his name for promotion cannot be considered to be contrary to the Rule or unsustainable in the eye of law.
19. True it is that the petitioner has made a representation to the Authority, but the said representation was not considered favorably on the ground that the DPC has already considered his case. Admittedly, the petitioner has made a representation to the authority against the decision of the DPC, but when the decision of the DPC has already been endorsed by the Chief Justice on administrative side giving effect to the promotion of OP Nos. 4 to 9 whose promotion having already been notified as per the claim of the petitioner in the writ, there is hardly any scope to consider such representation of the petitioner to give promotion and restore his seniority without the proceeding of DPC being set aside. Thus, the claims of the petitioner with regard to the order of rejection of his representation under Annexure-6 cannot be considered to be unsustainable in the eye of law and W.P.(C) No.9512 of 2018 Page 42 of 49 thereby, no illegality has been committed by rejecting the representation of the petitioner.
20. In view of the discussions made hereinabove coupled with the reasoning given on each of the question Nos. (i) to (iv) so formulated to address the claim of the petitioner, it is considered by this Court that the DPC has not committed any error in not recommending the name of the petitioner for promotion to the post of Senior Secretary and there is no illegality in rejecting the representation of the petitioner. At the same time, it is also found that the petitioner could not be able to satisfy that the selection procedure adopted by the DPC suffers from any illegality so as to warrant interference in the writ and thereby, the petitioner could not validly challenge the selection process as adopted by the DPC. There is nothing on record to show that the decision taken by the DPC was arbitrary, unreasonable and discriminatory.
21. One of the challenges of the petitioner in this writ is to the decision of the DPC in recommending the names of ineligible candidates such as OP Nos. 4 and 5 W.P.(C) No.9512 of 2018 Page 43 of 49 in terms of Educational Qualification for promotion to the post of Senior Secretary, which has been taken in question under (v). In order to answer the aforesaid challenge of the petitioner, a brief reference to the basic rules and provisions having application to the procedure for promotion is very much relevant. While making such reference, it appears that in exercise of the power conferred under Article 229 of the Constitution of India, the Chief Justice of High Court of Orissa has made the 2015 Rules to regulate the recruitment and conditions of service of the persons appointed to the posts in the High Court of Orissa. It is undisputable that Rule 13 of the 2015 Rules prescribes for promotion and reservation and Rule 13(a) of the Rules 2015 provides that promotion to the various post in the High Court service shall be made by the appointing authority basing on "merit with due regard to seniority and suitability" as per the provisions specified in column-8 of appendix-1, wherein at serial no. 26 provides for the qualification and mode of recruitment. Accordingly, the qualification for the post of Senior Secretary has been prescribed as Bachelors W.P.(C) No.9512 of 2018 Page 44 of 49 Degree in any discipline from a recognized university or such other qualification equivalent thereto and the post is to be filled up by promotion on the principle of "merit with due regard to seniority and suitability".
Rule 13(e) of the 2015 Rules The Chief Justice may, in case of a suitable and highly deserving candidates or class of candidates and for exigency, dispense with all or any of the above requirements.
22. In this case it is not disputed that a DPC was constituted and the Chief Justice had endorsed the file permitting ten Secretaries including OP Nos. 4 and 5 who comes in the zone of consideration for promotion, to attend the DPC by taking into consideration necessary facts, and it can thereby be said by necessary implication that the Chief Justice had endorsed the file of nominated Secretaries including OP Nos. 4 and 5 to relax the eligibility criteria of OP Nos. 4 and 5 who do not have the Educational Qualification of Bachelor Degree for consideration of promotion to the post of Senior Secretary in exercise of power U/S. 13(e) of the Rules, 2015. Hence, their W.P.(C) No.9512 of 2018 Page 45 of 49 selection cannot be considered as without qualification. Additionally, this Court is alive with the principle laid down by this Court in Jadunath Sahu Vrs. State of Orissa and others; 2020 II ILR CUT- 197, wherein this Court in a similar situation has held in Paragraph-8 as under:-
"8. Law is well settled that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It would not be setting a wrong right but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs at par. It is also the settled legal proposition that Article 14 of the Constitution does not envisage a negative equality. Even if in some cases, promotions have been made by dispensing with any requirements or relaxing any of the provisions of the Rules on account of some administrative exigencies in view of the special power lies with the Hon'ble Chief Justice, that does not confer any right on the petitioner."
23. The petitioner, however, relies on the decisions in R.Prabha Devi(Supra), SGT Charman Lal(supra), Dharam Bir(supra), Palure Bhaskar W.P.(C) No.9512 of 2018 Page 46 of 49 Rao(supra) & M.P. Electricity Board(supra) to contend that giving promotion to OP Nos. 4 & 5, who are not having requisite Education Qualification in terms of rule or relaxing such qualification is impermissible and illegal, but when there is provision in the Rule 13(e) of the 2015 Rules conferring powers on the Chief Justice to dispense with all or any of the requirements of the promotion and the Chief Justice, High Court of Orissa having endorsed the promotion of OP Nos. 4 & 5, it can be safely concluded by necessary implication that the Chief Justice had relaxed the eligibility criteria of Educational Qualification in respect of OP Nos. 4 & 5 and therefore, the promotion of OP Nos. 4 & 5 cannot be questioned, unless the Rules, 2015 is successfully challenged by the petitioner, which he has not yet done. Thus, on a respectful consideration of the decisions as relied on above by the petitioner, they are found distinguishable in the peculiar facts of the case. Even otherwise, unsettling the promotion of OP Nos. 4 & 5 would not confer any right on the petitioner to get promotion, which is of course not a vested right. On the other hand, the issue W.P.(C) No.9512 of 2018 Page 47 of 49 regarding giving promotion to similarly situated candidates having qualification of I.A./I.Com, which is one of the challenges of the petitioner in the writ, has already been answered by this Court in the decision in Jadunath Sahu(supra) by holding such promotion to be in accordance with the Rules 2015. Hence, this question is also answered in negative against the petitioner. Besides, the petitioner has not only participated in the DPC for consideration of promotion, but also has not challenged the above issue, when OP Nos. 4 & 5 were called to attend the DPC. It is also not in dispute that the petitioner has not only availed to participate in the aforesaid DPC, but also thereafter in subsequent DPCs and he has not challenged the above discretionary provision of promotion in the Rules, 2015 till today and therefore, the challenge of the petitioner granting promotion to OP Nos. 4 & 5 is untenable and the promotion of OP Nos. 4 & 5 to the post of Senior Secretary is very much in accordance with the Rules
24. In the wake of aforesaid discussions and on a critical analysis and conspectus of rival pleadings of the parties on the face of statutory Rules and W.P.(C) No.9512 of 2018 Page 48 of 49 Provisions governing the issue of promotion, this Court does not find any substance in the challenge of the petitioner in the writ so as to warrant any interference by this Court in exercise of extraordinary powers of Articles 226 & 227 of the Constitution of India.
Resultantly, the writ petition being devoid of merit stands dismissed on contest, but no order as to costs.
(G. SATAPATHY) JUDGE D. Dash, J. I Agree (D. DASH) JUDGE Orissa High Court, Cuttack, Dated the 7th day of March, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 09-Mar-2024 13:46:05 W.P.(C) No.9512 of 2018 Page 49 of 49