Orissa High Court
Dr. Balaram Bag vs State Of Odisha on 21 October, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.41518 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Dr. Balaram Bag
Aged about 60 years
Son of Late Lochan Bag
At: Mading Padar
P.S.: Bhawanipatna Sadar
District: Kalahandi
At present: Mohadev Nagar
Jharpada, Bhubaneswar
District: Khordha
Ex-Deputy Collector, Collectorate
Khordha, District: Khordha. ... Petitioner.
-VERSUS-
1. State of Odisha
Represented through
Principal Secretary to Government
General Administration &
Public Grievance (SE) Department
Lok Seva Bhawan, Bhubaneswar,
District: Khordha.
2. Principal Secretary to Government,
Finance Department,
Lok Seva Bhawan, Bhubaneswar,
District: Khordha. ... Opposite parties.
W.P.(C) No.41518 of 2021 Page 1 of 38
Counsel appeared for the parties:
For the Petitioner : Ms. Anima Kumari Dei,
Advocate
For the Opposite parties : Mr. Bibhu Prasad Tripathy,
Additional Government Advocate
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 07.10.2024 :: Date of Order : 21.10.2024
O RDER
Questioning the propriety of Order dated 21.10.2021
passed by the Principal Secretary to Government of
Odisha in General Administration and Public
Grievance (SE) Department in refusing to accept the
PARs pertaining to the periods from 01.04.2010 to
31.03.2011; from 01.04.2010 to 31.03.2011 and from
01.04.2011 to 05.08.2011 relating to District Rural
Development Agency, Kalahandi (Annexure-2 series);
and from 10.08.2011 to 31.03.2012 and from
01.04.2012 to 19.06.2012 pertaining to District Rural
Development Agency, Koraput, and non-issue of "No
Remarks Certificate" for the periods from 20.06.2012
to 03.09.2020, the petitioner has come up before this
Court by way of filing this writ petition craving to
W.P.(C) No.41518 of 2021 Page 2 of 38
invoke extraordinary jurisdiction of this Court under
Articles 226 and 227 of the Constitution of India.
Facts:
2. Facts, as pleaded by the writ petitioner, reveal that he,
in the Cadre of Odisha Administrative Service
(Supertime Scale) and retired from service on
31.03.2021 on attaining superannuation, made a
representation to the opposite party No.1 to accept
and act upon his Performance Appraisal Reports
("PARs", for short) for the periods from 01.04.2010 to
31.03.2011; from 01.04.2010 to 31.03.2011 and from
01.04.2011 to 05.08.2011 relating to District Rural
Development Agency, Kalahandi (Annexure-2 series);
and from 10.08.2011 to 31.03.2012 and from
01.04.2012 to 19.06.2012 pertaining to District Rural
Development Agency, Koraput (Annexure-4 series).
Further, the petitioner sought for issue of "No
Remarks Certificate" for the period from 20.06.2012 to
03.09.2020, i.e., the period during which he was
dismissed from service.
2.1. The petitioner having moved this Court by way of a
writ petition, registered as W.P.(C) No.23409 of 2021,
direction vide Order dated 16.08.2021 was issued to
consider and dispose of representation so submitted;
which being not complied, after receipt of Order dated
W.P.(C) No.41518 of 2021 Page 3 of 38
01.12.2021 in contempt petition, i.e., CONTC No.7019
of 2021, the opposite party No.2 communicated Order
No.2049/SE, Bhubaneswar, dated 21.10.2021 to the
petitioner on 17.12.2021 vide Memo No.2841/SE of
the General Administration and Public Grievance (SE)
Department. Assailed here in this writ petition is the
Order dated 21.10.2021 of the Principal Secretary of
the General Administration and Public Grievance (SE)
Department. For convenience of understanding the
plight of the petitioner, said the Order dated
21.10.2021 of the opposite party No.2 is quoted
hereunder:
"General Administration and
Public Grievance (SE) Department
ORDER
No.2049/SE, Bhubaneswar dated the 21st October, 2021 GAD-SEA-CASE1-0005-2021 Whereas, Dr. Balaram Bag, OAS (S) Retired, Ex-Deputy Collector, Collectorate, Khordha moved the Hon‟ble High Court of Orissa, Cuttack in W.P.(C) No.23409 of 2021 impleading the Additional Chief Secretary to Government, GA&PG Department and the Principal Secretary to Government, Finance Department as opposite party No.1 and 2 respectively, inter alia, praying therein for a direction to the opposite party No.1 to accept and act upon the Performance Appraisal Report as contained in representation under Annexure-5 thereto by the Reporting Officers for the interest of justice;
W.P.(C) No.41518 of 2021 Page 4 of 38And whereas, the Hon‟ble High Court disposed the aforesaid writ petition vide Order dated 16.08.2021, the relevant portion of which is quoted hereunder:
„Considering the limited grievance of the petitioner, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing opposite party no.1 to consider the representation filed by the petitioner vide Annexure-5 and pass appropriate order in accordance with law within a period of three months from the date of production of authenticated/certified copy of this order.‟ And whereas, the petitioner in his representation as at Annexure-5 to the writ petition states that more than half dozen of his Reporting Authorities have given him "Outstanding" which are available in the General Administration & Public Grievance (SE) Department and his promotion matter would have been accordingly dealt with had there been adverse entries in his PARs;
And whereas, contrary to the said assumption of Sri Bag, PARs available in General Administration & Public Grievance (SE) Department in his case are quite insufficient to give him further promotion;
And whereas, PARs are confidential documents which are received in General Administration & Public Grievance (SE) Department directly from the authorities vide their transaction letters and hence, there is no scope for the petitioner to know the remarks awarded by his authorities1;1
Such perception of the Authority appears to be inconsistent with the view expressed by Hon‟ble Supreme Court of India in Dev Dutt Vrs. Union of India, (2008) 8 SCR 174 = 2008 INSC 630, wherein declining to accept the contention of the respondent, it has been stated thus:W.P.(C) No.41518 of 2021 Page 5 of 38
And whereas, Sri Bag‟s contention, as reflected in his representation, and as per paragraph 3(ii) of the PAR Guideline, there is no restriction for transmission of PARs of two years in one letter, is true, but he submitted his PARs of two years in one form and transmitted to General Administration & Public Grievance (SE) Department without transmission letter which contradicts the existing PAR Guideline;
And whereas, his contention that as per paragraph 5(ii) of PAR Guideline, General Administration & Public Grievance (SE) Department will send the PAR (with part- I filled up and part-II blank) to the Reporting Authority in case of default by the appraise is true, but in the instant case, he was requested vide General Administration (SE) Department D.O. Letter No.212 dated 30.01.2012 to submit his PAR in time but he did not submit his PAR deliberately;
And whereas, his contention, as reflected in his representation, that as per paragraph 11 of PAR Guideline, "No Remarks Certificate" can also be recorded under the circumstances of demitting office and the "demitting office" means to dismiss, but the paragraph 11 of the PAR Guideline is misinterpreted by him, in as much as, as per paragraph 11(a) of the PAR Guideline, "No Remarks Certificate" can be recorded in case of suspension/long leave/long term training/retirement/demitting office/death/ invalidation of the authorities at all three levels of PAR recording chain when PAR formats are transmitted to these levels by the lower authority and the NRC requested by him for the period from 20.06.2012 "9. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved."W.P.(C) No.41518 of 2021 Page 6 of 38
to 03.09.2020 is the period of his dismissal and hence, contradicts paragraph 11(a) of the PAR Guideline;
And whereas, his further contention that as per paragraph 11(e) of the PAR Guideline, "No Remarks Certificate" can be recorded if no remarks are received within one year from the last date of the financial year to which the PAR relates, is true, but as per the clarification made by General Administration & Public Grievance (SE) Department vide Letter No.2659/SE dtd.06.07.2019, NRC may be issued in such case with observation that the officer reported upon has not submitted his PAR in due time as per schedule and this period shall not be taken into account for their promotion with further clarification that this period may be treated as "PAR not initiated".
Now, therefore, the representation of Sri Bag, as at Annexure-5 to the aforesaid writ petition, after careful consideration, is found to be devoid of any merit and rejected.
Sd/-
Principal Secretary to Government"
2.2. The petitioner has stated to have recorded the PARs for the periods from 01.04.2010 to 31.03.2011; from 01.04.2010 to 31.03.2011 and from 01.04.2011 to 05.08.2011 relating to District Rural Development Agency, Kalahandi; and from 10.08.2011 to 31.03.2012 and from 01.04.2012 to 19.06.2012 pertaining to District Rural Development Agency, W.P.(C) No.41518 of 2021 Page 7 of 38 Koraput separately for each financial year in prescribed forms and transmitted the same to the Reporting Authority, viz., Project Director, District Rural Development Agency within specified time, and the Reporting Authority has also transmitted the said PARs to the General Administration & Public Grievance (SE) Department with remarks separately for different periods.
2.3. As the petitioner was given to understand from the Office of the General Administration & Public Grievance (SE) Department that the PARs for the 2010-11 and 2011-12 periods (from 01.04.2011 to 09.08.2011) transmitted by the concerned Reporting Authority have been misplaced, he made arrangement to get the copies of the said PARs for the aforementioned periods, and re-sent the same to the General Administration & Public Grievance (SE) Department under one transmission letter as there is no restriction under paragraph 32 of the "Guidelines 2 Paragraph 3 of the "Guidelines for Recording of Performance Appraisal Report for Group-A Officers of State Government replacing the current system of Confidential Character Rolls (CCRs)" vide Memo No.1199/PRO, dated 26.04.2006 is extracted:
"3. Report Period.--
(i). The PARs shall be recorded for each financial year or part thereof in the forms prescribed by the Government (Annexure-A). PARs for two or more years should not be recorded in one form. Separate forms should be used for each financial year or part thereof (Please also refer to 6 below)
(ii) The minimum period for recording remarks in the PAR of an officer shall be four months in a year. The higher authority should not record her/his remarks about a subordinates‟ work unless she/he has seen it for a minimum period of four months.W.P.(C) No.41518 of 2021 Page 8 of 38
for Reporting and Maintenance of PARs of Group-A Officers of Government" issued vide Memo No.1199/SE/PRO dated 26.04.2006 of the General Administration & Public Grievance (SE) Department (referred to as "PAR Guidelines", for convenience).
2.4. Indicating no scope to issue "No Remarks Certificate"
D.O. Letter No.212/SE dated 30.01.2012 of the General Administration & Public Grievance Department was communicated to the petitioner with the following contents:
"D.O. No.212/SE Bhubaneswar Date: 30.01.2012 Dear, Sub.: Recording of "No Remarks Certificate" in favour of Dr. Balaram Bag, OAS-I (JB), BDO, Nadapur for the period from 01.04.2010 to 10.06.2010.
In inviting a reference to your Letter No.2559/II dated 14.09.2011 on the subject cited above, I am desired to say that although the period from 01.04.2010 to 10.06.20 is less than four months, the said period of the PAR along with the rest period of the same financial year, i.e. for the year 2010-11 may be submitted to your Reporting/ Reviewing/Accepting Authority concerned as per para-5(viii)3 of this Department Circular Memo Explanation.--
For computing the period of four months, leave taken or training programme attended for a continuous duration of less than thirty days shall be ignored."
3 Paragraph 5 of the "Guidelines for Recording of Performance Appraisal Report for Group-A Officers of State Government replacing the current W.P.(C) No.41518 of 2021 Page 9 of 38 system of Confidential Character Rolls (CCRs)" vide Memo No.1199/PRO, dated 26.04.2006 is extracted:
"5. Initiation of PAR recording process by Appraisee/Reporting Authority/ Reviewing Authority/Accepting Authority.
(i) PAR will be initiated by the appraisee [she/he may download the form from the website (www.orissa.gov.in/ga/ccr/ccr.htm) or may use photocopy] within one month of the conclusion of the financial year, or the change of Reporting Authority due to either the transfer of the appraise or of the Reporting Authority. The appraisee shall send PAR form filling up self appraisal portion (Part I and Part II) to the Reporting Authority with a copy to the General Administration (S.E.) Department. (Please also refer to para 6 and 7)
(ii) In case of default by the appraise, the PAR (with Part-I filled up and Part-II blank) will be sent to the Reporting Authority by General Administration (S.E.) Department. On the margin of Part III of PAR, remarks "Appraisee did not submit PAR, on time" should be recorded.
(iii) Reporting Authority after recording his remarks within the time prescribed, will send the PAR to the Reviewing Authority with a copy of the filled up PAR to the General Administration (S.E.) Department.
(iv) In case the Reporting Authority does not send the PAR to the Reviewing Authority within time prescribed, PAR (with or without self assessment as the case may be) shall be sent to the Reviewing Authority by General Administration (S.E.) Department. Remarks on margin of Part III "Reporting Authority did not submit PAR on time" will be recorded by the General Administration (S.E.) Department. The Reviewing Authority will record his remarks within one month without awaiting the remarks of the Reporting Authority. In case Reviewing Authority receives the filled up PAR from the Reporting Authority after having received a copy of the PAR from the General Administration (S.E.) Department, and after having recorded his remarks on the PAR, the remarks of the Reporting Authority will be disregarded. The Reviewing Authority will send the concerned copy of PAR received from the Reporting Authority to the General Administration (S.E.) Department. The General Administration (S.E) Department will destroy concerned copy of PAR belatedly filled up by Reporting Authority.
(v) On receipt of PAR from Reporting Authority within the specified time Reviewing Authority will record his remarks within the time prescribed.
He will send the PAR to the Accepting Authority with a copy to the General Administration (S.E) Department.
(vi) In the case of Reviewing Authority not submitting PAR on time, the General Administration (S.E.) Department will send the copy of PAR (with or without assessment of appraisee or Reporting Authority) to the Accepting Authority.
(vii) Accepting Authority will record his remarks within the time prescribed and send it to the General Administration (S.E.) Department. In case the Accepting Authority receives the filled up PAR from the Reviewing Authority after having received the copy of PAR from General Administration (S.E) Department, and after having recorded his remarks, the provisions of foregoing clauses (iv) of Para 5 will mutatis mutandis, apply.
(viii) If as per the Schedule of Instruction, there are more than one Reporting Authority/Reviewing Authority (called Co-Reporting/Co-Reviewing Authorities), then the appraisee will submit the PAR to the 1st Reporting Authority within the time prescribed who will transmit the PAR after recording his remarks to 2nd Reporting Authority within 30 W.P.(C) No.41518 of 2021 Page 10 of 38 No.1199/PRO dated 26.04.2010 [sic., 26.04.2006]. Hence there is no scope to issue N.R.C. in your favour for the aforesaid period."
2.5. As it appears from pleadings that the Revenue & Disaster Management Department had dismissed the petitioner from his service on 20.06.2012 vide Order No.28578, dated 16.06.2012, which is as follows:
"Government of Odisha Revenue & Disaster Management Department No.IIIE-PD-I-19/2012--28578/R. (CS), Dated: 16.06.2012 Whereas Sri Balaram Bag, OAS-I(JB), Ex-Block Development Officer, Nandahandi has been convicted on a criminal charge under Section 13(2) read with Section 13(i)(d) of Prevention of Corruption Act, 1988 and Section 477-A/34 of Indian Penal Code;
And, whereas, it is considered that, the conduct of the said Sri Balram Bag, OAS-I(JB), Ex-Block Development Officer, Nandahandi which has led to his conviction is such that to allow his further retention in the public service is undesirable.
days of the receipt. The 2nd Reporting Authority will attach additional copy of only part-III of PAR format following the 1st Reporting remarks and then write his remarks in the attached sheet within 30 days of receipt of PAR. Thereafter she/he will send the PAR to the Reviewing Authority. The same process shall be followed mutatis mutandis, if there are more than one Reviewing Authority except that normally remarks should be made within 15 days of the receipt of the PAR.
(ix) When Reporting Authority/Reviewing Authority (any or all) are not available to record remarks on the ground of suspension/long leave/retirement/demitting office/death/invalidation/long term training/for not having seen the work of the appraisee for four months or more, the appraisee shall submit the PAR (part I & II filled up) direct to the Reviewing Authority/Accepting Authority with a copy to G.A. (S.E.) Department."W.P.(C) No.41518 of 2021 Page 11 of 38
And, whereas Odisha Public Service Commission, Cuttack have been consulted on the tentative decision of the Government in Letter No.903/R(CS)., dated:
28.04.2012 and the Odisha Public Service Commission, Cuttack have concurred in to the tentative decision of the Government and communicated to this Department vide letter No.3900/PSC., dated 19.05.2012.
Now, therefore, in exercise of powers conferred by sub- rule (1) of the Rule 18 of Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and in consultation with Odisha Public Service Commission, Cuttack, the Governor of Orissa has been pleased to dismiss the said Sri Balram Bag, OAS-I (JB), Ex-Block Development Officer, Nandahandi from service with immediate effect.
By Order of the Governor, Sd/-
Principal Secretary to Government"
2.6. Consequent upon the order of conviction of the petitioner being set aside by this Court in Criminal Appeal No.101 of 2012 by a Judgment dated 11.09.2019, the petitioner was exonerated from all the charges; and on consideration of the same, the Government of Odisha in Revenue & Disaster Management Department revoked the order of dismissal from service of the petitioner by Order dated 31.07.2020, which reads as:W.P.(C) No.41518 of 2021 Page 12 of 38
"Government of Odisha Revenue & Disaster Management Department Office Order No.RDM-DP-CASE-OT-0056-2019-23775/R(CS), Dated: 31 July 2020 Whereas, a Criminal case was in trial in the Court of Special Judge, Vigilance, Jeypore, in Berhampur Vigilance P.S. Case No.20 dated 03.09.1993 under Sections under Sections 13(2) r/w 13(1)(d)/Prevention of Corruption Act/477-A/34 of Indian Penal Code against Sri Balaram Bag, OAS-A(JB), Ex-B.D.O., Nandahandi Block, District: Nabarangpur for abusing his official position for his own pecuniary benefit by showing undue official favour to the firms in purchase of Purlins/Rafters, A.C. sheets etc. causing loss of Government money;
And whereas, the Learned Special Judge, Vigilance, Jeypore in his judgment dated 10.02.2012 has held the accused Sri Balaram Bag, OAS-A (JB), Ex-B.D.O., Nandahandi Block, District: Nabarangpur guilty of the charges. The Learned Special Judge, Vigilance, Jeypore convicted and sentenced, accused Sri Balaram Bag to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.50,000/- (Fifty Thousand) and in default, to undergo further rigorous imprisonment for a period of six (06) months for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.50,000/- (Rupees Fifty thousand), in default, to undergo further rigorous imprisonment for a period of six (06) months for the offence under Sections 477-A/34 Indian Penal Code. It is also directed that both the W.P.(C) No.41518 of 2021 Page 13 of 38 substantive sentences shall run concurrently and the period of detention already undergone U.T.P. shall be off in terms of Sec. 428 of Criminal Procedure Code.
And whereas, in pursuance to the judgment dated 10.02.2012 of the learned Special Judge, Vigilance, Jeypore, Government in Revenue & Disaster Management Department have dismissed Sri Balaram Bag, OAS-A (JB), Ex-BDO, Nandahandi, District: Nabarangpur with immediate effect as per Rule 18(i) of Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 vide Revenue & Disaster Management Department Order No.28578, dated 16.06.2012;
And whereas, Sri Balaram Bag appealed against the judgment dated 10.02.2012 passed by the learned Special Judge, Vigilance, Jeypore before the Hon‟ble High Court of Odisha vide CRLA No.101 of 2012. The Hon‟ble High Court vide their judgment dated 11.09.2019 has allowed the Criminal Appeal and set aside the impugned order dated 10.02.2012 of learned Special Judge, Vigilance, Jeypore of conviction of the appellant, Sri Balaram Bag under Section 13(2) read with Section 13(1)(d) of the 1988 Act and Section 477-A read with Section 34 of the IPC and the sentence passed thereunder. The Hon‟ble High Court has also acquitted the appellant, Sri Balaram Bag from all the charges and discharged from liability of his bail bonds;
Now, after careful consideration of the aforesaid judgment dated 11.09.2019 passed by Hon‟ble High Court of Odisha in CRLA No.101 of 2012, Government have been pleased to revoke the order of dismissal issued vide Revenue & DM Department Order No.28578 dated 16.06.2012.W.P.(C) No.41518 of 2021 Page 14 of 38
By order of the Governor Sd/-
Principal Secretary to Government"
2.7. After issuance of Revenue & Disaster Management Department Notification No.26283/R&DM, dated 03.09.2020, the petitioner joined the duty on 04.09.2020. It is submitted by the petitioner that a Government servant is not required to submit PAR during dismissal period and in case of revocation of the dismissal order by the Appointing Authority or quashing of the dismissal order by the competent Court, the Authority is required to issue "No Remarks Certificate" akin to guideline contained in paragraph 11(a)4 of the PAR Guidelines.
4 Paragraph 11 of the "Guidelines for Recording of Performance Appraisal Report for Group-A Officers of State Government replacing the current system of Confidential Character Rolls (CCRs)" vide Memo No.1199/PRO, dated 26.04.2006 is extracted:
"11. Issue of No Remarks Certificate.--
No Remarks Certificate (NRC) will be recorded by the G.A. (SE) Department under the following circumstances:
(a) Suspension/long leave/long term training/retirement/demitting office/ death/invalidation of the authorities at all the three levels of PAR recording chain when PAR formats are transmitting to these levels by the lower authority in the PAR chain or by the G.A. (SE) Department.
(b) Where the appraisee works for less than four months under each of the authority in the recording chain (for computing four months, leave/training for less than 30 days will be ignored).
(c) Where the appraisee is on long leave (four months or more) or under suspension. (In these case NRC will be for the period he is on leave or under suspension).
(d) Where the Officer reported upon is on deputation to Foreign Service such as international organization or NGOs.
(e) If no remarks are received within one year from the last date of the financial year to which the PAR relates it will be presumed no remarks are to be recorded and a note "No Remarks Certificate" will be kept in the PAR folder of the respective officers by the G.A. (SE) Department."W.P.(C) No.41518 of 2021 Page 15 of 38
2.8. Being aggrieved by refusal to accept the PARs submitted by the Reporting Authority and direct issue of No Remarks Certificate vide Order dated 21.10.2021, the petitioner is before this Court in the present writ petition.
Hearing and submissions of counsel for parties:
3. On being noticed, the opposite parties have filed counter affidavit. Pleadings being completed, on consent of counsel for the parties, this matter is taken up for final hearing at the stage of admission.
3.1. Heard Ms. Anima Kumari Dei, learned Advocate for the petitioner and Mr. Bibhu Prasad Tripathy, learned Additional Government Advocate for the opposite parties-State and the matter stood reserved for preparation and pronouncement of Order.
4. Ms. Anima Kumari Dei, learned counsel appearing for the petitioner drew attention of this Court to copy of PAR for the year 01.04.2010 to 31.03.2011 with the remarks of the Reporting Authority and for the period 04.06.2010 to 31.03.2011 and 01.04.2011 to 09.08.2011 with remarks of the Reporting Authority placed at Annexure-2 series and submitted that there is no violation of requirement of paragraph 5 of the Guidelines for Recording of Performance Appraisal Report for Group-A Officers of State Government W.P.(C) No.41518 of 2021 Page 16 of 38 replacing the current system of Confidential Character Rolls (CCRs) vide Memo No.1199/PRO, dated 26.04.2006. As the same were sent through one letter in absence of any prohibition or restriction, technical niceties should not have come in the way to advance the cause of justice in favour of the petitioner particularly when he has been exonerated from all the criminal charges by this Court.
4.1. It is submitted by Ms. Anima Kumari Dei, learned Advocate that the petitioner due to non-consideration of the PARs, has been subjected to deprivation of legitimate dues and denied promotion to the Odisha Administrative Service (Supertime Scale) in Level-14 of the Pay Matrix as specified in the First Schedule to the Odisha Revised Scale of Pay Rules, 2017 vide Notification No.10167--GAD-SER2-ID-0027-
2020/SCS, dated 30.03.2021 of the General Administration & Public Grievance Department on the ground of non-availability of requisite PARs, although, in fact, all PARs required for promotion of the petitioner to the said post were very much available in the said Department.
5. Per contra, Sri Bibhu Prasad Tripathy, learned Additional Government Advocate appearing for the opposite parties refuting contentions of the petitioner and referring to paragraphs 7, 8, 9 and 10 submitted W.P.(C) No.41518 of 2021 Page 17 of 38 that the copies of PARs enclosed to the representation dated 15.05.2021 appears to be fabricated as the petitioner could not be stated to have been in possession of the "original PARs containing the remarks of the Reporting Authority". It is strenuously objected by learned Additional Government Advocate that the General Administration and Public Grievance Department has received the PARs stated to have been transmitted by the Project Director, District Rural Development Agency. It is in the counter affidavit affirmed that "in the instant case the PARs of the petitioner containing the remarks of the Reporting Authority have been submitted by the petitioner along with the transmission letter without containing any letter number".
5.1. In order to justify the Order dated 21.10.2021 of the Principal Secretary of the General Administration and Public Grievance Department it is urged that the refusal to grant "No Remarks Certificate" is in consonance with the PAR Guidelines of 2006. There is no occasion for the authority to issue such certificate except for the situations and events enumerated in the said Guidelines.
Consideration of contentions, averments and submissions of parties and decision thereon:
W.P.(C) No.41518 of 2021 Page 18 of 386. Considered the rival contentions, heard the arguments of counsel for the respective parties and perused the record.
6.1. As it appears, the Order dated 21.10.2021 rejecting the representation of the petitioner was on the ground that though D.O. Letter dated 30.01.2012 the petitioner was instructed to submit his PAR in time, the same was not complied with a note that he "deliberately" did not submit. The ground ascribed for restricting issue of "No Remarks Certificate" was that the PAR Guidelines of 2006 is silent about the contingency that arose in the present case, i.e., restoration in service after the employee is exonerated in the Criminal Appeal.
6.2. Be that be, it is not disputed that during the periods involved in the present case in respect of which PARs were stated to have been prepared and submitted, the petitioner had rendered service. He was dismissed from service on being convicted in the criminal case, but was allowed to join in service after favourable result in the criminal appeal. The dispute regarding receipt of copies of PARs by the appropriate authority has been raised for the first time by way of counter affidavit. It is manifest from the Order rejecting the representation that the authority concerned while deciding the merit of the claim of the petitioner failed W.P.(C) No.41518 of 2021 Page 19 of 38 to appreciate fact with reference to the connected records of the District Rural Development Agency to ascertain whether the copies of PARs were transmitted to proper quarters. Further simply using the word "deliberately" would not suffice. The word "deliberately" wherever used or applied to context it would mean existence of non-voluntary factor. This Court finds that there is absence of material on record to demonstrate that there was contumacious conduct on the part of the petitioner which led the Principal Secretary to observe that "he did not submit his PAR deliberately". There being no nexus to the action with that of the circumstance borne on record, the reason for conclusion as to default of the petitioner cannot withstand scrutiny. For arriving at conclusion that there was non-submission of PARs "deliberately", the Principal Secretary in his Order dated 21.10.2021 has not put forth any material leading to construe that such non-submission of PARs, though not admitted by the petitioner, had element of motive/ill-design attributable to him. Hence, the Authority seems to have made observation casually and misdirected himself.
6.3. As the ground for dismissal from service of the petitioner stood expiated, and the depravity suffered during these years in which he was out of service, he W.P.(C) No.41518 of 2021 Page 20 of 38 is liable to be compensated suitably and favourably. Under the above circumstances, it is perceived that the Order dated 21.10.2021 has not been passed by proper examination of records and material facts. This Court would wish to make an observation with respect to denial to issue "No Remarks Certificate" that, if the PAR Guidelines is silent to deal with the situation faced in the instant case, the Principal Secretary to General Administration and Public Grievance (SE) could have applied his independent mind without cursing draftman‟s folly with respect to the unforeseen event. It may be noticed that such "No Remarks Certificate" was requested by the petitioner as he was not in service during 20.06.2012 to 03.09.2020 due to operation of order of dismissal. However, he was allowed to join the service with effect from 04.09.2020 after his conviction was set aside in the criminal appeal. It may be plausible that due to dismissal from service, the PARs could not have been initiated during the said periods. The criminal appeal of the petitioner being allowed by this Court, it would clarify the position that for no fault of the petitioner the PARs were not initiated. The petitioner should not be made to suffer the stigma.
At this stage reference is made to the following ground as reflected in the Order dated 21.10.2021 not to W.P.(C) No.41518 of 2021 Page 21 of 38 accede to the prayer of the petitioner for issue of "No Remarks Certificate" in tune with paragraph 11 of the PAR Guidelines:
"*** but the paragraph 11 of the PAR Guideline is misinterpreted by him, inasmuch as, as per paragraph 11(a) of the PAR Guideline, "No Remarks Certificate" can be recorded in case of suspension/long leave/long term training/retirement/demitting office/death/ invalidation of the authorities at all three levels of PAR recording chain when PAR formats are transmitted to these levels by the lower authority and the NRC requested by him for the period from 20.06.2012 to 03.09.2020 is the period of his dismissal ***"
This Court refers in this regard to the "Principles of Statutory Interpretation" by Justice G.P. Singh wherein reference is made to Spicer Vrs. Holt, (1976) 3 ALL ER 71 in a different context. Spicer Vrs. Holt has been referred to in P.K. Unni Vrs. Nirmal Industries, (1990) 2 SCC 378, wherein the Hon‟ble Supreme Court had approved the contention of Mr. K. Parasaran, Senior Advocate who had contended that even if there was an omission it was not for the Court to rectify it. The Court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. The reference has been made to Nalinakhya Bysack Vrs. Shyam Sunder Haldar, AIR 1953 SC 148 wherein it was enunciated that assuming there is a defect or an omission in the W.P.(C) No.41518 of 2021 Page 22 of 38 words used by the legislature, the Court would not go for any aid to correct or make up the deficiency. The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. No case can be found to authorise any Court to alter a word so as to produce a casus omissus. Lord Halsbury in Mersey Docks Vrs. Henderson, (1888) 13 App Cas 595, p.602) has observed thus:
"We cannot add and mend, and, by construction, make up deficiencies which are left there".
However, it is noticed in Crawford Vrs. Spooner, (1846) 6 Moore P.C.1, 8-9 that where the language of the statute leads to manifest contradiction with the apparent purpose of the enactment, the Court can, definitely, adopt a construction which will carry out the obvious intention of the legislature. In doing so a judge must not alter the material of which the Act is woven, but he can and should iron out the creases as stated by Lord Denning L. J, as he then was, in Seaford Court Estates Vrs. Asher, (1949) 2 All ER 155 (at 164). In M. Pentiah Vrs. Muddala Veeramallappa, AIR 1961 SC 1107 had adopted that principle of Seaford Court Estates (supra). In Spicer Vrs. Holt, Viscount Dilhorne, J. observed having quoted from W.P.(C) No.41518 of 2021 Page 23 of 38 Simon LC, J in Barnard Vrs. Gorman, (1941) 3 All ER 45 as under:
"Our duty in the matter is plain. We must not give the statutory words a wider meaning merely because, on a narrower construction, the words might leave a loophole for fraud against the Revenue. If, on the proper construction of the section, that is the result, it is not for judges to attempt to cure it. That is the business of Parliament. Our duty is to take the words as they stand and to give them their true construction, having regard to the language of the whole section, and, as far as relevant, of the whole Act, always preferring the natural meaning of the word involved, but nonetheless always giving the word its appropriate construction according to the context."
In Punjab Land Development and Reclamation Corporation Ltd. Vrs. Presiding Officer, Labour Court, (1990) 3 SCC 682 it has been observed that the literal rules of construction require the wording of the Act to be construed according to its literal and grammatical meaning whatever the result that may produce. In that report, a passage from Lord Denning's Discipline of Law has been approvingly extracted by the Supreme Court which reflects on what a judge can do without blaming the draftsman. For reference, the said passage is extracted:
"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to W.P.(C) No.41518 of 2021 Page 24 of 38 foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be lettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature."
Further reference has been made in the said report to an early decision in Reserve Bank of India Vrs. Peerless General Finance and Investment Co. Ltd., reported in (1987) 1 SCC 424 wherein it has been observed that interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the W.P.(C) No.41518 of 2021 Page 25 of 38 textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. In Reema Aggarwal Vrs. Anupam, (2004) 3 SCC 199 the Hon‟ble Supreme Court has provided the interpretation based on Reserve Bank of India Vrs. Peerless General Finance and Investment Co. Ltd. (supra), but reference was also made to Seaford Court Estates Ltd. Vrs. Asher, (1949) 2 All ER 155 (CA). In Seaford Court Estates Ltd. (supra) Lord Denning advised a purposive approach to interpret a word used in a statute. Having observed that he had commented that a judge must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which W.P.(C) No.41518 of 2021 Page 26 of 38 gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give „force and life' to the intention of the legislature. Further Lord Denning had observed as follows:
"A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases."
In Balaram Kumawat Vrs. Union of India, (2003) 7 SCC 628 it has clearly been observed that any narrow, pedantic, literal and lexical construction may not always serve the purpose of justice. The law would have to be interpreted having regard to the subject matter of the offence and the object of the law which it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudence does not say so.
The above observations may be noticed in the discussion made in the case of Court on its Own Motion Vrs. Union of India, 2021 SCC OnLine Tri 300.
Thus, by way of a mechanical interpretation, the Courts cannot render a substantive provision of law otiose. The Courts have a duty to serve the provisions W.P.(C) No.41518 of 2021 Page 27 of 38 of law which have been drawn up for a purpose. If from the statute, its purpose/object can be gathered, the Court may provide an interpretation which would give a meaning to the said provision being harmonious to the object.
Having noticed the perspective of interpretation with respect to unoccupied interstices this Court while observing that the PAR Guidelines have no statutory force, but these Guidelines only lay down procedure for smoothening the administration and bolster the administrative machinery in it functioning in measuring performance of civil servants, the Authority concerned can act as situation would warrant. In the nature of present case, since the conviction of the petitioner was set aside by this Court in Criminal Appeal, for the period of dismissal from 20.06.2012 to 03.09.2020 ought to be considered for the purpose of grant of "No Remarks Certificate" by applying the rationale contained in paragraph 11 of the PAR Guidelines as if the present circumstance fell within its ambit.
6.4. In Union of India Vrs. Somasundram Viswanath, (1988) Supp.3 SCR 146, it has been held that, "It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the W.P.(C) No.41518 of 2021 Page 28 of 38 appropriate Legislature or by Rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments."
See also, SK Nausad Rahaman Vrs. Union of India, 2022 LiveLaw (SC) 266.
It is also trite that executive instructions cannot amend or supersede the statutory Rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. [Vide, State of U.P. Vrs. Babu Ram Upadhyaya, AIR 1961 SC 751; State of Tamil Nadu Vrs. Hind Stone, AIR 1981 SC 711].
In Punit Rai Vrs. Dinesh Chaudhary, (2003) 8 SCC 204; Union of India Vrs. Naveen Jindal, (2004) 2 SCC 510 and State of Kerala Vrs. Chandra Mohan (2004) 3 SCC 429, it has been held that executive instructions cannot be termed as law within the meaning of Article 13(3)(a) of the Constitution of India. In Bishamber Dayal Chandra Mohan Vrs. State of U.P., AIR 1982 SC 33 it is observed that, the difference in a statutory W.P.(C) No.41518 of 2021 Page 29 of 38 order and an executive order observing that executive instruction issued under Article 162 of the Constitution of India does not amount to law. However, if an order can be referred to a statutory provision and held to have been passed under the said statutory provision, it would not be merely an executive fiat but an order under the statute having statutory force for the reason that it would be a positive State made law. So, in order to examine as to whether an order has a statutory force, the Court has to find out and determine as to whether it can be referred to the provision of the statute.
Having not been framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India, PAR Guidelines cannot be construed to have statutory force and, therefore, they have no binding force of law. They are not inviolable or rigid. The terms of such Guidelines can be relaxed or modified by the authority or the Courts if the situation demands fairness and justice. In case of hardship caused to an individual the Guidelines can be made flexible. The opposite party No.1, in the present fact- situation, may choose to relax the terms of such Guidelines on consideration of administrative exigencies and circumstantial or situational factors coupled with hardship caused to the petitioner.
W.P.(C) No.41518 of 2021 Page 30 of 386.5. In paragraph 11(e) of the PAR Guidelines it is clearly stated that if no remarks are received within one year from the last date of the financial year to which the PAR relates it will be presumed no remarks are to be recorded and a note "No Remarks Certificate" will be kept in the PAR Folder of the respective officers by the General Administration and Public Grievance Department (SE) Department. There is no restriction put upon the competent authority to consider that appropriate cases comprehending genuineness of the matters. On indulgence, case to case basis, issue of such certificate could possibly be granted.
6.6. Furthermore, in the Order dated 21.10.2021 while denying the claim of the petitioner, it has been observed that "the officer reported upon has not submitted his PAR in due time as per schedule and his period shall not be taken into account for their promotion with further clarification that this period may be treated as „PAR not initiated‟ ". As has already been discussed, the petitioner had submitted his PAR which got acknowledged by the Project Director of the District Rural Development Agency. For any lackadaisical approach of the Reporting Authority concerned, appropriate action could be taken against such erring officer; but not against the petitioner. At this stage this Court feels it appropriate to take note of W.P.(C) No.41518 of 2021 Page 31 of 38 a co-ordinate bench decision of this Court rendered in the case of Sanjeev Kumar Nayak Vrs. State of Odisha, WPC (OAB) No.7 of 2018, disposed of vide Order dated 09.09.2022, which is to the following effect:
"4. Counter affidavit has been filed by the Opposite Party Nos.1 to 5, wherein it has been stated that due to non-availability of the CCR for the period from 2011-12 to 2015-16, the case of the Petitioner could not be recommended and accordingly he has not been given promotion.
5. In view of such stand taken in the counter affidavit, this Court finds that non-consideration of the case of the petitioner on the ground of non- availability of CCR is not a valid ground as the Petitioner has no role with regard to non- availability of the CCR for the period indicated in the impugned order.
6. In view of the same, this Court while disposing the Writ Petition directs the Opposite Parties more particularly Opposite Party No.3 to reconsider the case by considering the claim of the petitioner and pass necessary order allowing promotion to the Petitioner, if he is found eligible from the date his juniors were so promoted vide order dated 04.06.2018 under Annexure-3. This Court further directs the Opposite Party No.3 to complete the exercise within a period of three months from the date of receipt of this order."
6.7. Ergo, these PAR Guidelines reflect the modality to be followed by the Appraisee, the Reporting Authority, the W.P.(C) No.41518 of 2021 Page 32 of 38 Reviewing Authority and the Accepting Authority and keeping with time-lines for consideration of PARs for convenience of reference while considering promotion of the Appraisee. Therefore, in absence of any Rules being framed in exercise of power under Article 309 of the Constitution of India, it can be said that the PAR Guidelines are only aid to prioritize submission of PAR at the appropriate time for the purpose of assessment of performance of the civil servants to improve the capacity of the administrative machinery but cannot be construed as if it lays down rigid adherence to procedural norms. For ensuring that employees are not unfairly prejudiced by adverse remarks in their CCRs, the same can, based on situation, be modified suitably to take appropriate decision. Hence, in the present circumstance, it is open for the Authority concerned to consider the PARs on the basis of periods worked by the petitioner. The Authority may also keep in view the fact that the reason for dismissal of the petitioner from service has already been expiated.
6.8. Thus, the Order dated 21.10.2021 of the Principal Secretary to Government of Odisha in General Administration and Public Grievance Department is not sustainable and warrants indulgence inasmuch as grounds on which the representation of the petitioner W.P.(C) No.41518 of 2021 Page 33 of 38 have been rejected are jejune and the resultant was on account of consideration of non-germane factors.
7. The petitioner has averred that he was given to understand that the PARs for the years 2010-11 and 2011-12 (from 01.04.2011 to 09.08.2011) transmitted by the concerned Reporting Authority were misplaced in the Office of the General Administration and Public Grievance Department. However, in the reply, it appears the opposite parties have taken contradictory stance. At paragraph 8 of the counter affidavit it has been stated as follows:
"That with regard to the averments made in paragraph 9 of the writ application, it is submitted that no PARs for the period 2010-11 and 2011-12 (from 01.04.2011 to 09.08.2011) have been received in the General Administration and Public Grievance (SE) Department and accordingly the petitioner was intimated vide the General Administration and Public Grievance Department D.O. No.212/SE, dated 30.01.2012 under Annexure-5 to the writ application to submit his PAR for the year 2010-11. Hence, the petitioner‟s contention that his PARs for the year 2010-11 and 2011-12 (from 01.04.2011 to 09.08.2011) have been misplaced in the General Administration and Public Grievance Department is hereby denied."
7.1. In this context it is apt to discuss the documents attached to the representation dated 15.05.2021 of the petitioner as forwarded by the Additional Secretary to W.P.(C) No.41518 of 2021 Page 34 of 38 Government of the Office of the General Administration and Public Grievance Department to the Additional Secretary to Government the Office of the General Administration and Public Grievance (SE- A) Department vide Letter dated 16.06.2021, which forms part of Annexure-B/1 series to the counter affidavit. The transmission of PAR for the periods 2010-11 and 2011-12 (from 01.04.2011 to 09.08.2011) is acknowledged by the Appraisee as also the Reporting Authority. Delving deep into the record, it transpires that report for the financial year 2010-11 contained PAR for the period from 01.04.2010 to 31.03.2011 and report for the financial year 2011-12 contained PAR for the period from 01.04.2011 to 09.08.2011. The reports are in separate sheets (financial year wise). At this juncture it may be taken note of that paragraph 3 of the PAR Guidelines requires recording of performance shall be "for each financial year or part thereof in the forms prescribed". Meticulous perusal of documents also reveals that the appraisee (petitioner) has signed in the document titled "Personal Data" on 10.08.2011. Before the D.O. No.212/SE, dated 30.01.2012 of the General Administration and Public Grievance Department was issued, it is apparent that the PARs left the custody of the petitioner. The Order dated 21.10.2021 under consideration in the present case showing that "he W.P.(C) No.41518 of 2021 Page 35 of 38 submitted his PARs of two years in one form and transmitted to the General Administration and Public Grievance (SE) Department without transmission letter which contradicts the existing PAR Guideline" seems to be de hors record.
8. Thus the Authority concerned-opposite party No.1 is now required to examine whether the PARs enclosed to the writ petition as stated to be remarked by the Reporting Authority and communicated to the proper Authority for Review and Acceptance thereof. This Court is not convinced with the reason contained in the impugned Order that the non-compliance of supply of required information as per D.O. Letter dated 30.01.2012 was "deliberate" attempt made by the petitioner. So far as "No Remark Certificate" is concerned, the opposite party No.1 is at liberty to take a conscientious decision in this regard as the eventuality, that is obtained in the present case, being absent in the PAR Guidelines, 2006.
8.1. While deciding the matter afresh, the appropriate authority may also bear in mind the fact that the petitioner was allowed to work with effect from 04.09.2020 and got retired with effect from 01.04.2021 on attaining age of superannuation on 31.03.2021. It is also noteworthy that the Government of Odisha in General Administration and Public W.P.(C) No.41518 of 2021 Page 36 of 38 Grievance Department vide Notification bearing No.GAD-SER2-ID-0020-2019-13107/SCS, dated 05.05.2021, has promoted the petitioner notionally in the rank of Odisha Administrative Service (Supertime Scale) with effect from 17.08.2011 on ad hoc basis. The said notification contained the following:
"This promotion is subject to outcome of the SLP (Civil) Appeal No.8490 of 2010 and Civil Appeal No.3240 of 20105 filed by Shri Pravakar Mallick and others Vrs. State of Odisha and others and other related cases, if any."
9. In view of above discussions and for the reasons assigned supra, the Order dated 21.10.2021 of the Principal Secretary to Government of Odisha in General Administration and Public Grievance Department is hereby set aside and the matter does require to be considered afresh pragmatically by competent authority.
9.1. It is apposite to direct the opposite party No.1 to have a relook at the grievance of the petitioner in the light of discussions made above and take appropriate decision within eight weeks from today.
5 The Civil Appeal No.3240 of 2011 [Pravakar Mallick Vrs. State of Odisha Vrs.] and Civil Appeal No.4421 of 2021 [Jayanti Singh Vrs. State of Odisha] have been disposed of by a common Judgment of the Hon‟ble Supreme Court on 17.04.2020 reported at (2020) 5 SCR 222 = 2020 SCC OnLine SC 375.
W.P.(C) No.41518 of 2021 Page 37 of 389.2. It is made clear that this Court has not entered into any disputed factual aspect nor expressed any opinion on merits of the matter. The Principal Secretary to Government of Odisha in General Administration and Public Grievance Department is at liberty to take appropriate decision without being influenced by his earlier order and/or any observation made in this Order touching the merit.
9.3. With the above observation and direction, the writ petition stands disposed of.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 21st October, 2024//MRS/Suchitra Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Oct-2024 17:59:34 W.P.(C) No.41518 of 2021 Page 38 of 38