Orissa High Court
Dr. Durga Prasanna Choudhury vs State Of Orissa & Others ......... ... on 17 February, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No.24906 of 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Dr. Durga Prasanna Choudhury ......... Petitioner
-versus-
State of Orissa & others ......... Opp.Parties
_______________
For petitioner : M/s.J.K.Rath, Sr. Counsel along with Sri
D.N.Nath, S.N.Rath & P.K.Rout
For opp.parties : Mr. R.K.Mohapatra, Govt. Advocate
(for O.Ps.1 & 2)
M/s.A.R.Swain, S.B.Mohanty
(for O.P.10)
M/s. S.K.Das & associates
(for O.P.4)
M/s. D.Mohapatra & associates
(for O.P.7)
M/s. S.K.Pattnaik & associates
(for O.P.8)
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA
AND
THE HONOURABLE SMT. JUSTICE ARUNA SURESH
Date of hearing : 14.02.2012 & Date of judgment : 17.02.2012
V.Gopala Gowda, C.J. Petitioner, who is functioning as Director of Orissa
Judicial Academy in the cadre of District Judge of the Orissa Superior
Judicial Service (Senior Branch), is before this Court seeking for issuance
of a writ of mandamus directing the opposite parties 1 and 2 to extend
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the benefit of promotion to the post of Additional District Judge ( District
Judge Cadre) and to the post of Selection Grade District Judge with effect
from the date the next juniors to him got the benefit of promotion to the
said post as well as Selection Grade District Judge urging various facts
and legal contentions. Petitioner has further sought for a direction to
opp.parties 1 and 2 to place him above the opposite parties 3 to 13 in the
Gradation List/ Civil List of the year 2006 prepared and circulated by
opposite party no.2.
2. The brief facts, which are relevant for the purpose of
appreciating the rival factual and legal contentions urged on behalf of
parties to find out as to whether the petitioner is entitled to the relief as
sought in this writ petition, are as follows:
3. Petitioner was recruited through a competitive
examination conducted by the Orissa Public Service Commission and
selected for appointment to the post of erstwhile Munsif, now designated
as Civil Judge (Junior Division) on probation vide Law Department
Notification No. 16132 dated 10th September, 1982 and this Court's
notification No. 615/ H. dated 28th September, 1982 and joined in the
said post on 11th October, 1982 forenoon under the judgeship of Cuttack.
He had completed the probation period successfully and posted as
J.M.F.C., Bhadrak in the erstwhile judgeship of Balasore vide this Court's
notification No. 941-A and 942-A dated 22 nd December, 1982. The
position of the petitioner as per the gradation list published by the
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competent authority on the basis of merit assigned to him by the Orissa
Public Service Commission was at Sl.No. 170 of the Civil List of 1984.
Opposite parties 3 to 13 were also recruited in the same year by the
Orissa Public Service Commission and were placed below him in the merit
list since their positions in the Civil List/ Gradation list of the year 1984
find place at Sl.Nos.171, 173, 175, 177, 178, 179, 182, 183, 185, 186
and 187. Therefore, opposite parties 3 to 13 were juniors to the petitioner
so far as his seniority in service is concerned. Petitioner was promoted to
Class-I (Junior) post, i.e., in the post of Sub-Divisional Judicial Magistrate
vide notification No. 50 dated 30.01.1989. He was placed senior to the
aforesaid opposite parties 3 to 13 in the cadre of Orissa Judicial Service,
Class-I (Junior). The same is reflected in the Civil List published in the
year 1992. Petitioner along with the opposite parties 3 to 13 were
promoted to the post of Subordinate Judge, now designated as Civil Judge
(Senior Division) with effect from 14th November, 1994 on the basis of
seniority-cum-merit. Opposite parties 3 to 13 were promoted to the post
of Subordinate Judge subsequent to that of the petitioner. In the
Gradation list/ Civil list prepared by this Court in the year 2002, the name
of the petitioner finds place at Sl.No.24 whereas the opposite parties 3 to
13 were placed below the petitioner, i.e., at Sl.Nos.25 to 39.
4. The next promotion from the post of Civil Judge (Senior
Division) is Orissa Superior Judicial Service (Junior Branch) i.e., the post
of Chief Judicial Magistrate, which is in the cadre of Senior Civil Judges.
The Orissa Superior Judicial Service Rule, 1963 (hereinafter to be called
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as "Rules, 1963") was governing the field. Rule 10 of the said Rules, 1963
prescribes that the recruitment to the Junior Branch of the service shall
be made from amongst the Subordinate Judges. Petitioner was promoted
to the post of Chief Judicial Magistrate vide this Court's notification No.
517(A) dated 7th September, 2001 whereas the opposite parties 3 to 13
were promoted to the said post subsequent to that of the petitioner. The
seniority list of Chief Judicial Magistrate reflected in the Gradation List/
Civil List of 2002 also indicates the placement of the petitioner in the said
list at a higher position to that of opposite parties 3 to 13. Therefore, it
clearly shows that petitioner was given promotion to the next higher post
considering his merit as well as seniority and has been assigned in the
Civil List prepared and circulated by this Court and therefore, petitioner
was enjoying the promotional benefits without any difficulty.
5. It is also averred in the writ petition that petitioner
carries a good service record to his credit and no adverse communication
has been conveyed to him by this Court at any point of time. It is further
emphasized that with due permission of this Court, petitioner submitted a
thesis for acquiring Ph.D qualification and was awarded with a Ph.D
degree in Law by Utkal University in the year 1999 and therefore,
petitioner was having additional qualification such as LL.M and Ph.D
Degree in law to his credit. When the petitioner was continuing in the said
post with the same ranking in the Gradation List/ Civil List, i.e. higher
ranking to that of opposite parties 3 to 13, the said officers though junior
to him in the respective cadres of erstwhile Munsif {Civil Judge (Junior
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Division)} and in the post of Chief Judicial Magistrate were promoted to
the post of Additional District Judge in the cadre of Orissa Superior
Judicial Service (Senior Branch) (District Judge Cadre) ignoring the
rightful claim of the petitioner without any rhyme or reason. It is his case
that he possessed an unblemished career/ service record and without
giving due weightage to the seniority and merit, opposite parties 3 to 13,
who were juniors to him, have been given benefit of promotion to the
next higher post, i.e., in the District Judge cadre Vide Home Department
notification dated 29.8.2005. Though the petitioner made a query in the
matter, but was not able to know the reason of non-consideration of his
case for promotion. However after eleven months of the promotion of his
juniors, he was promoted to the post of Additional District Judge (Fast
Track Courts) vide Home Department Notification No. 30644 dated 22nd
July, 2006 and this Court's notification No. 467/A dated 22 nd of August,
2006 and joined in the said post at Nayagarh on 4th September, 2006
forenoon. Further, he has stated that on enquiry he came to know that
about 17 nos. of regular posts of Additional District Judges were made
available to be filled up by promotion from Orissa Superior Judicial
Service (Junior Branch). However, opposite parties 3 to 8 were given the
benefit of promotion to regular Additional District Judge post and opposite
parties 9 to 11 were given promotion to the post of Ad hoc Additional
District Judge and opposite parties 12 and 13 were given promotion to
the post of Ad hoc Additional District Judge (Fast Track Courts), but
petitioner though was senior to them, was ignored and was not given
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promotion to the regular post in the cadre of District Judge. Hence, he
filed the writ.
6. A detailed statement of counter is filed by opposite
party no.2 sworn in by the Special Officer (Admn.) of this Court traversing
the petitioner's claim. The recruitment, appointment and seniority list of
the erstwhile Munsif {Civil Judge (Junior Division)} and Sub-Judge {(Civil
Judge (Senior Division)) and Chief Judicial Magistrate are not in dispute.
It is also not in dispute that the opposite parties 3 to 13 have been
promoted to the post of Additional District Judge and Ad hoc Additional
District Judge (Fast Track Courts) depriving the said promotional benefits
to the petitioner taking into consideration the Annual Confidential Reports
for the periods from 1999 to 2003. It is also further stated that the
Committee has taken into consideration the grade assigned to the ACR
rating of an officer in the following manner.
(a) Outstanding- 5
(b) Very good - 4
(c) Good - 3
(d) Average- 1
(e) Poor- 0
It is also admitted that the said procedure was only adopted for that year,
i.e., 2005 and not earlier to that or subsequent to that period and further
referred to certain aspects which are not germane to the issue regarding
the conduct of the officer as the same do not reflect in the Annual
Confidential Report. The said fact is evident from the subsequent action
on the part of the High Court in promoting him to the same post in
September, 2006 and there is no record that promotion to the post along
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with opposite parties 3 to 13 has been either denied or has been
deferred.
7. Mr.J.K.Rath, learned Senior Counsel by filing a comparative chart
showing the names of the officers, their AC.Rs. maintained during the
year 1999 to 2004, submits that opposite party no.3 (Smt.V.Jayashree),
opp.party no.12 (Shri G.P.Sahoo) and opp.party no.13 (Shri D.Chaulia),
whose service record as per the remarks made by the Recommending
Authority, namely, the Port Folio Judge and the remarks made by the
Accepting Authority in the A.C.Rs. of 2001 is 'average' like that of the
petitioner and they have been promoted on the basis of the evaluation of
performance by adopting the credit assigned to the A.C.R. rating for five
years, i.e., from 1999 to 2003, which was neither provided in the Rules,
1963 nor was followed prior to that period or subsequent thereto but only
at the time of considering the case of the petitioner and opposite parties 3
to 13 for promotion to the cadre of District Judge was applied. Therefore,
according to the petitioner, the said procedure followed by the Promotion
Committee dated 20.07.2005 is not legal and valid and is in violation of
Article 14 and 16 of the Constitution of India. Further, it is stated that no
departmental proceeding or vigilance case or criminal case was pending
against the petitioner at the time of consideration of his case for
promotion to the next higher post, i.e, Additional District Judge in the
District Judge cadre and besides, no adverse remark has ever been
communicated to him. Therefore, the petitioner was eligible to be
considered for promotion to the post of Additional District Judge. It is
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further stated that the petitioner has been arbitrarily denied promotion by
the said Committee by not recommending the case of the petitioner
considering the ACR of the year 2001, which was recorded by it contrary
to the recommendation made by the recommending authority, viz. Judge
in-charge despite the fact that the recommending authority has
recommended for promotion of the petitioner (to the post of Additional
District Judge). Non-consideration of his claim and denying promotion to
him on the basis of the recordings made in the ACR by the Committee
contrary to the reporting officer and the recommending authority as
'average', without there being any material by resorting to an alien
procedure of grade assigned to the A.C.R. rating of an officer, is bad in
law.
8. Further, it is contended by Mr.Rath, learned Senior Counsel that as
per Rule 9 of the Rules, 1963, since suitability of an officer of Junior
Branch is required to be adjudged for promotion to the Senior Branch
Service, the service records/ Annual Confidential Report pertaining to
Junior Branch period is only required to be assessed for the purpose of
finding out the most suitable candidate to be promoted. The petitioner
and opposite parties 3 to 13 were promoted to the post of Chief Judicial
Magistrate, i.e., from the cadre of Junior Branch of the service in the year
2001. Thereafter, the service record/ Annual Confidential Report of the
petitioner vis-à-vis the aforesaid opposite parties 3 to 13 had to be
examined after 2001 and not before that for the purpose of finding out
most suitable person for promotion to the Senior Branch of the Service.
9
Therefore, according to the petitioner, the entire process of promotion of
the petitioner and others is a deviation to the statutory provisions
provided under the Orissa Civil Service (Criteria for Promotion) Rule, 1992
(hereinafter to be referred to as "Rules, 1992") read with Rules, 1963 on
the part of the Committee, which has been accepted by the Full Court
without considering the relevant aspects and denial of promotion to the
petitioner, who stands higher ranking than opposite parties 3 to 13, is
bad in law and the procedure followed by the Committee is also bad in
law and liable to be interfered with. Further, the petitioner during the
course of argument prays to quash the endorsements communicated to
him while rejecting his representations dated 9th March, 2007 and 22nd
December, 2009 stating that he is not entitled for promotion to the post
of Additional District Judge from the date his juniors have been promoted
and placing him in the appropriate place in the Gradation List/ Civil List.
Though no such prayer has been made, learned counsel for the petitioner
further seeks to quash the procedure adopted by the Committee in
evaluating the merit of the petitioner without there being any adverse
remark against him and granting the same relief to the juniors and
similarly placed persons with that of the petitioner and not following the
Rules, 1992 read with Rules, 1963 and following the procedure for
evaluating the merit of the petitioner and depriving his legitimate right of
promotion, which is in violation of Articles 14 and 16 of the Constitution
of India and therefore, the petitioner is entitled for the relief.
10
9. Mr.R.K.Mohapatra, learned Government Advocate places reliance
upon the decision of the Supreme Court in Shiba Shankar Mohapatra
and others v. State of Orissa AIR 2010 SC 706, wherein the apex
Court has held that seniority list which remains in existence for 3 to 4
years unchallenged, should not be disturbed and in case some one
agitates the issue of seniority beyond this period, he has to explain the
delay and laches in approaching the adjudicatory forum by furnishing
satisfactory explanation. He further places reliance upon the decision of
the Supreme Court in M.V.Thimmaiah and others v. Union Public
Service Commission and others, 2008(2) SCC 119, wherein the
Supreme Court has held as follows :
"......Normally, the recommendations of the Selection
Committee cannot be challenged except on the ground of
mala fides or serious violation of the statutory rules. The
courts cannot sit as an Appellate Authority to examine the
recommendations of the Selection Committee like the court
of appeal. This discretion has been given to the Selection
Committee only and courts rarely sit as a court of appeal to
examine the selection of the candidates nor is the business
of the court to examine each candidate and record its
opinion..... "
10. The accepting authority of the Annual Confidential Report, namely,
the Promotion Committee has not recommended for his promotion on the
basis of the remarks made by it for the years 1999, 2000 and 2001 as
'average' and also accredit the rating marks awarded to the officers whose
case fell for consideration on various aspects indicated above.
11. Mr.Mohapatra has also placed reliance to the Full Bench decision of
this Court in Ramesh Prasad Mohapatra v. State of Orissa and
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others, 1980(49) CLT 442 regarding the aspects to be taken into
consideration for evaluating the Annual Confidential Report for the
purpose of promotion. The Full Bench of this Court in paragraph 10
observed thus:
"......... When the question of promotion arises, the
consideration becomes very different. The totality of the
service record is taken into account for judging comparative
merit and for that purpose the total effect of service is taken
into account. No reasoning is necessary to support the
proposition that between an officer with a clean record
throughout and another with a bad record in the beginning for
several years and equal record with the other officer for the
subsequent period, that officer who has a clean record
throughout would stand a better chance of promotion. ........"
Further, he has vehemently contended that taking note of Rule 9 of the
Rules, 1963 read with Rules, 1992, when the Committee has assessed the
Annual Confidential Reports of the relevant period of the officers for the
purpose of examining the claim for promotion to the post of Additional
District Judge, the same need not be interfered with by this Court in
exercise of its judicial review power. Therefore, he submitted that no case
is made out by the petitioner for grant of reliefs as prayed. Hence, he has
prayed for dismissal of the writ petition.
12. Mr.D.Mohapatra, learned counsel appearing for opposite party no.7,
Mr.S.K.Patnaik, appearing for opp.party no.8, Mr.S.K.Das for opp.party
no.11 and Mr.A.R.Swain for opp.party no.10 while adopting the
submissions made by the learned Government Advocate submit that no
relief is sought for against the aforesaid opposite parties to quash their
appointments by way of promotion.
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13. With reference to the aforesaid rival factual and legal contentions,
this Court is required to examine
(i) whether the petitioner is entitled for the relief by issuing
a direction to opposite party no.2 to extend the benefit
of promotion to the post of Additional District Judge
(District Judge cadre) and grant of Selection Grade with
effect from the date the next juniors to him got
promotion to the said cadre and to the Selection Grade
District Judge post ?
(ii) whether the petitioner is entitled for the relief of
quashing the endorsements issued by the High Court
rejecting his representation though no prayer in this
regard is made ?
(iii) Whether the writ petition has to be dismissed on the
ground of delay and laches ?
(iv) What order?
14. The first point is required to be answered in favour of the petitioner
for the following reasons.
15. The Orissa Superior Judicial Service Rules, 1963, (hereinafter to be
referred to as "Rules, 1963") framed under Article 309 of the Constitution
of India was governing the field for appointment to the post of Additional
District Judge. Rule 5 of the said Rules provides that recruitment to the
Senior Branch of the service is to be made (a) by way of direct
recruitment; and (b) by promotion of officers from Junior Branch of the
service. Rule 9(1) of the said Rules prescribes that whenever a vacancy in
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the Senior Branch of the service is decided to be filled up by way of
promotion, the Government shall fill up the same after due
recommendation of this Court in accordance with sub-Rule (2). Sub-rule
(2) provides that the High Court shall recommend for appointment to
such vacancy, an officer of the Junior Branch of the service who in the
opinion of the High Court is the most suitable for the purpose of
appointment to the post of Additional District Judge by way of promotion,
provided that if for any reason, Government is unable to accept the
recommendation as aforesaid, they may call for further recommendations
from the High Court to fill up the vacancy. From a conjoint reading of the
Rules, 1963, it is evident that vacancies in the Senior Branch are to be
filled up by way of promotion on the basis of the recommendation made
by the High Court from amongst the most suitable persons and
accordingly, the Government is to issue appointment orders. If the
service record of an officer in the Junior Branch of the service is
unblemished and he has the due seniority in the cadre and all through he
has been given his due promotion without any hindrance, such officer can
be treated as the most suitable person for promotion to the Senior Branch
of the Service. Since the petitioner fulfills such conditions, he ought to
have been promoted to the Senior Branch of the service as there were 17
vacancies in the said cadre in the year 2005 when his juniors were
promoted. The seventeen persons who were promoted to the post of
Additional District Judges out of whom two persons were senior to the
petitioner and some other persons have retired on attaining the age of
14
superannuation excepting eleven persons (opposite parties 3 to 13), who
are arrayed as opposite parties in these proceedings were promoted to
the Senior Branch of the Service being juniors to the petitioner ignoring
his rightful claim. On perusal of the Rules, 1963, we find that the words
"the most suitable" are not defined. The practice and procedure which has
been followed by this Court for adjudging an officer most suitable for the
purpose of promotion to the Senior Branch of service from the year 1963
till the promotion given to the juniors of the petitioner, i.e., opposite
parties 3 to 13, i.e., in the year 2005 had to be followed. The petitioner,
who has got periodical promotion from the cadre of erstwhile Munsif (Civil
Judge (Junior Division)) to the Sub-Judge {Civil Judge (Senior Division)}
and from the post of Sub-Judge {(Civil Judge (Senior Division)} to the
post of Chief Judicial Magistrate, due consideration was given to the
seniority as well as merit of the petitioner on the recommendation made
by the High Court from time to time and at no point of time his juniors
have superseded the petitioner in any promotional post.
16. To appreciate the submissions made on behalf of the respective
parties, we called for the file relating to constitution of Transfer
Committee and Promotion Committee by the Full Court from the registry.
We have gone through the said file and found that the Full Court in its
meeting held on 31.7.2004 resolved as follows :
"It is resolved that henceforth matters relating to
promotion and transfer and posting of Judicial Officers
belonging to Orissa Superior Judicial Officers (SB) shall be
first dealt with by two Committees to be constituted by the
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Chief Justice of the High Court from time to time and such
committees shall make appropriate recommendations which
will be placed before the Full Court for consideration."
As per the aforesaid resolution of the Full Court, the then Chief Justice of
this Court constituted two Committees (i) relating to promotion of Judicial
Officers of the cadre of O.S.J.S.(S.B.) and (ii) relating to transfer and
posting of Judicial Officers of the cadre of O.S.J.S.(Sr. Branch) on
13.8.2004 consisting of four Judges and again it was reconstituted on
2.11.2004 and thereafter on 4.3.2005 consisting of five Judges. Rule 4 of
the Rules, 1963 deals with 'Cadre', which states as follows:
"4. (1) The cadre of the service shall consist of two
branches, namely:
(i) Superior Judicial Service, Senior Branch; and
(ii) Superior Judicial Service, Junior Branch."
The said Committee considered the case of the petitioner along with
opposite parties 3 to 13 for promotion from the cadre of O.S.J.S.(Junior
Branch) to the cadre of O.S.J.S. (Senior Branch) on 20.07.2005. The
Promotion Committee was not authorized to consider the matter relating
to promotion of Judicial Officers belonging to Orissa Superior Judicial
Service (Junior Branch) to the cadre of Orissa Superior Judicial Service
(Senior Branch). The constitution of the Committee pursuant to the said
resolution by the Chief Justice was, therefore, not authorized to effect
promotion in respect of officers, i.e., petitioner and opp.parties 3 to 13
belonging to Orissa Superior Judicial Service (Junior Branch). Even
construing that it was authorized as per the decision of the Full Court, the
recommendation procedure followed by the said Committee accrediting
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ratings of the Annual Confidential Reports of the officers whose cases
were considered for the years from 1999 to 2003 is alien to the well
established practice and procedure followed by this Court and the same is
contrary to the Rules. The procedure which was adopted by the
Committee for assessing the suitability of the officers for promotion
taking into consideration the credit assigned to the A.C.R. rating of an
officer was as follows:
(f) Outstanding- 5
(g) Very good - 4
(h) Good - 3
(i) Average- 1
(j) Poor- 0
On the basis of the aforesaid rating in the A.C.R. promotion has been
given to the petitioner, opp.parties no.3 to 13 and other officers taking
into consideration the remarks for the five preceding years.
17. The Rules, 1992 provides that the Annual Confidential
Reports of the eligible candidates for the period of five years preceding
the year of consideration for promotion has to be taken into
consideration. The recruitment was made in the year 2005 and
proceeding five years has been explained in the note to Rule 3 of the
Rules, 1992, which inter alia, states that the five years preceding the year
in which Officer's performance is in accordance with the relevant
Recruitment Rules first evaluated. Therefore, the Annual Confidential
Report of the petitioner from 2000 to 2004 had to be considered for
adjudging his suitability. On perusal of the record we find that instead of
taking the service record of the petitioner from the years 2000 to 2004,
17
the service record from the years 1999 to 2003 has been taken into
consideration. We also find that accrediting the ratings of marks in the
Annual Confidential Reports followed in respect of the officers for the
relevant period was never followed earlier to 2005 and subsequent to that
period. Thus, the procedure followed by the Committee is bad in law and
denying promotion to the petitioner is a clear case of arbitrary,
unreasonable, unfair practice which has been adopted by the Committee
in recommending the officers to the cadre of O.S.J.S.(Sr. Branch) as
Additional District Judges, Adhoc District Judges and Judges of Fast Track
Courts. The aforesaid important aspect of the matter was not noticed by
the Full Court while accepting the recommendation of the Committee in
not recommending the case of the petitioner for promotion to the post of
Additional District Judge in the District Judge cadre though his juniors
were considered and promotion has been given to them who were
similarly placed.
18. Further, the said Committee was required to take into
consideration the Annual Confidential Reports for five years as per the
note to Rule 3 of Rules, 1992 on the date of consideration, that means
from 2000 to 2004. It is an undisputed fact that as per the record and
counter statement, A.C.Rs. for five years, i.e., from 1999 to 2003 had
been taken into consideration wherein the said procedure is in
contravention of note to Rule 3 of Rules 1992. According to the said note,
previous five years period should have been from 2000 to 2004. Further
the Annual Confidential Report of the year 1999 was taken into
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consideration while promoting the petitioner from the post of Sub-Judge
to Chief Judicial Magistrate. On the very same A.C.R., the evaluation of
marks of the officers whose cases were considered in the manner as
aforesaid, was totally impermissible in law for the reason that the Rules
do not envisage such procedure. Apart from the said reasoning, the
Annual Confidential Report of 2001 has been taken into consideration
where the remarks made by the accepting authority, namely, the
Promotion Committee is contrary to the remarks made by the
recommending authority, namely, the Port Folio Judge, who had the
occasion to monitor the functioning of all the Judicial Officers including the
petitioner in the Judgeship. The Recommending Authority, namely, the
Port Folio Judge while examining the remarks of the Reporting Authority
for the year 2001, made an endorsement to the following effect :
"May be considered for promotion
after perusal of judgments (1st part),
Good (2nd part)"
In view of the aforesaid remarks made by the Recommending
Authority, there is absolutely no reason to make adverse remark by
the Accepting Authority as 'average', which is contrary to the Annual
Confidential Report made by the Recommending Authority. In the
absence of any adverse remark about his performance, integrity,
honesty and other relevant factors like knowledge of law etc. and
when the very same entry has been taken into consideration for the
purpose of giving promotion of the petitioner from the post of Civil
Judge (Senior Division) to Chief Judicial Magistrate, the remarks made
19
by the accepting authority is not sustainable in law. Apart from the
said reasoning, opposite parties 3, 12 and 13, who were similarly
placed as that of the petitioner and who were given the remarks as
'average' by the Recommending Authority, have been given promotion
to the post of Additional District Judge (District Judge cadre) whereas
the case of the petitioner without any rhyme or reason, arbitrarily has
not been considered on the basis of rating of A.C.R. as indicated
above, which is not permissible in law. The Constitution Bench of the
Supreme Court in S.Pratap Singh v. State of Punjab, AIR 1964
Supreme Court, 72, by referring to the case in Vatcher v. Paull,
1915 A.C. 372, at para 6 observed thus :
"............The courts have, on occasions, resolved the difficulty by
finding out the dominant purpose which impelled the action and
where the power itself is conditioned by a purpose, have
proceeded to invalidate the exercise of the power when any
irrelevant purpose is proved to have entered the mind of the
authority( See Sadler v. Sheffield Corporation, 1924-1 CH 483
as also Lord Denning observed in Fitzwilliam's (Earl) Wentworth
Estate Co. v. Minister of Town and Country Planning, 1951-2 K B
284 at page 307. This is on the principle that if in such a
situation the dominant purpose is unlawful then the act itself is
unlawful and it is not cured by saying that they had another
purpose which was lawful." (emphasis supplied)
19. In view of the aforesaid dictum of the A.C. which is
followed by the Supreme Court, we are of the view that consideration of
promotion of the petitioner to the post of Additional District Judge (District
Judge Cadre) is not in accordance with Rules, 1963 and Rules, 1992. It is
an arbitrary action on the part of the Committee in not recommending the
case of the petitioner for promotion and granting the benefit to the juniors
of the petitioner, namely, opposite parties 3 to 13 and others, which is in
20
clear violation of Articles 14 and 16 of the Constitution of India as rightly
urged by Mr.J.K.Rath, learned Senior Counsel, whose submission is well
founded and the same must be accepted.
20. It is an undisputed fact that the petitioner was promoted
from the cadre of erstwhile Munsif now Civil Judge (Junior Division) to the
post of Sub-Divisional Judicial Magistrate and from Sub-Divisional Judicial
Magistrate to the cadre of Sub-Judge now Civil Judge (Senior Division) and
from the cadre of Sub-Judge to the post of Chief Judicial Magistrate purely
on the basis of seniority-cum-merit and his ranking in the Gradation List/
Civil List was above the opposite parties 3 to 13. It is also an undisputed
fact that Rule 9(2) of the Rules, 1963 is required to be applied for the
purpose of considering the claim of the petitioner and other eligible
persons who are below him to fill up the existing vacancies in promotional
quota in the posts of Additional District Judge (District Judge cadre).
21. Learned Senior Counsel has also placed reliance upon the
decision of the Supreme Court reported in Dev Dutt v. Union of India
and others, AIR 2008 S.C. 2513 (para-39), wherein the apex Court has
clearly laid down as follows :
"........ fairness and transparency in public administration
requires that all entries (whether poor, fair, average, good
or very good) in the Annual Confidential Report of a public
servant, whether in civil, judicial, police or any other State
service (except the Military) must be communicated to him
within a reasonable period so that he can make a
representation for its upgradation. ........"
21
In the instant case, though an adverse entry like 'average' has been made
in the Annual Confidential Report of the petitioner during the years 1999,
2000 and 2001, the same has not been communicated and the said
entries were made use of by the Committee against the petitioner, which
is bad in law. Therefore, the said action is in contravention of the decision
of the Supreme Court referred to supra.
22. Learned Senior Counsel in support of the aforesaid proposition
of law has also placed reliance upon the decision of the Supreme Court in
the case of U.P.Jal Nigam and others v. Prabhat Chandra Jain and
others, AIR 1996 SC 1661, wherein the apex Court held as follows :
"......... All what is required by the Authority regarding
confidentials in the situation is to record reasons for such
down grading on the personal file of the officer
concerned, and inform him of the change in the form of
an advice. If the variation warranted be not permissible,
then the very purpose of writing annual confidential
reports would be frustrated. ......."
In the present case, the Accepting Authority while recording the Annual
Confidential Report as 'average' during the year 1999, 2000 and 2001 has
not recorded the reasons for so recording, which has not been
communicated to the petitioner at any point of time.
23. Non-consideration of the aforesaid relevant facts by the Full
Court at the time of accepting the recommendation of the Committee in
denying promotion to the petitioner is bad in law. Further on the basis of
the very same Annual Confidential Reports within eleven months, the
petitioner has been given promotion to the post of Additional District
22
Judge against the vacancy in the absence of a specific mention that
promotion will come into effect prospectively either by the
recommendation of the Committee or by the Full Court resolution.
Therefore, the petitioner's rank should have been placed above the
opposite parties 3 to 13. The petitioner was, therefore, justified in giving
representations to the High Court for rectification of the same in the year
2007 and again in the year 2009. Therefore, though the petitioner's rank
is above the opposite parties 3 to 13, and the five years A.C.R. should
have been taken into consideration from 2000 to 2004, and the adverse
entries having not been communicated to the petitioner, non-grant of
promotion to the petitioner on the basis of the said adverse entries is
arbitrary, unreasonable, unfair, which is violative of Articles 14 and 16 of
the Constitution. Therefore, the petitioner is entitled to the relief as
prayed by him.
Point No.(ii)
24. We have already discussed elaborately that the procedure
followed by the Promotion Committee in denying promotion to the
petitioner is bad in law by recording our reasons on point no.(i) and
therefore, we have held that the petitioner is entitled for the relief as
prayed for by him. Therefore, we have to grant the relief notwithstanding
rejection of the representations of 2007 and 2009 by issuing
endorsements in the years 2007 and 2011, which are not challenged in
this petition. Since the Full Court has accepted the recommendations of
the Committee for giving promotions to opp.parties 3 to 13 and others
23
without proper consideration of the case of the petitioner in the light of
Rules, 1992 read with Rules, 1963 and also the ACRs and the alien
procedure followed by the Committee in accrediting the rating of the ACR
of the officers for the first time and denying promotional benefit to the
petitioner and granting benefit to his juniors, is bad in law. The said action
is arbitrary and unreasonable. The Committee was not authorized by the
Full Court to consider the claim of the officers belonging to Orissa Superior
Judicial Service (Junior Branch) to promote to the cadre of Officers of
Orissa Superior Judicial Service (Senior Branch). The above aspect of the
matter has not been re-examined independently either by the Committee
or Full Court when the representations of the petitioner were considered
and disposed of. Therefore, rejection of the representations of the
petitioner by the Committee and Full Court, is also not legal and valid.
Hence, the endorsements issued by the High Court while rejecting the
representations is bad in law and we have opined that the prayer sought
for by the petitioner is justified, is the finding recorded by us while
answering the point no.1 in favour of the petitioner. Therefore, the
endorsements issued to the petitioner rejecting the representations are
also liable to be quashed and the same are accordingly quashed.
Point Nos. (iii) & (iv)
25. Regarding delay, Mr.Mohapatra, learned Government Advocate
while placing reliance on the judgment of the Supreme Court in the case
of Shiba Shankar Mohapatra (supra) submitted that since the petitioner
24
has not explained the inordinate delay in approaching this Court for
fixation of his seniority, he is not entitled for the relief claimed.
26. The aforesaid submission is refuted by Mr.J.K.Rath, learned
Sr. Counsel appearing for the petitioner by referring to the decision of the
Supreme Court in Dehri Rohtas Light Railway Co. Ltd. v. District
Board, Bhojpur, (1992) 2 SCC 598, which has also been followed by the
Supreme Court in Royal Orchid Hotels Limited and another v.
G.Jayarama Reddy and others, (2011) 10 SCC 608, wherein the
Supreme Court at para 27 extracted para 13 from the judgment in Dehri
Rohtas Light Railway Co. Ltd(supra) and observed thus:
"13. The rule which says that the Court may not enquire into
belated and stale claim is not a rule of law but a rule of
practice based on sound and proper exercise of discretion.
Each case must depend upon its own facts. It will all depend
on what the breach of the fundamental right and remedy
claimed are and how delay arose. The principle on which the
relief to the party on the grounds of laches or delay is defined
is that the rights which have accrued to others by reason of
the delay in filing the petition should not be allowed to be
disturbed unless there is a reasonable explanation for the
delay. The real test to determine delay in such cases is that
the petitioner should come to the writ court before a parallel
right is created and that the lapse of time is not attributable
to any laches or negligence. ................"
He has submitted that delay and laches should not come in the way while
exercising the power of judicial review by this Court. He has further
submitted that when illegalities and irregularities are committed by the
Committee in following the procedure, which is not permissible in law at
the time of examining the claim of the petitioner and junior officers and
25
denying promotion to the petitioner on irrelevant consideration, delay and
laches do not come in the way for this Court for granting the relief to the
petitioner. It is further submitted that there is no delay and laches on the
part of the petitioner in ventilating his grievance before this Court as the
petitioner has made a representation in the year 2007 and when the same
was rejected, he again made another representation in 2009, which has
also been rejected on 08.08.2011 (Annexure-4) and soon thereafter, he
filed this writ. Thus, it is apparent that the petitioner has been diligently
pursuing his case after coming to know that irregularities and illegalities
had been committed by the authorities. Hence, it cannot be said that
petitioner is not a diligent officer and therefore, delay and laches cannot
be attributed to him for denying the relief.
27. Since we have answered point nos.(i) & (ii) against opposite
parties 1 and 2 by recording our reasons after coming to the conclusion
that not giving promotion to the petitioner along with his juniors and
giving promotion to opposite parties 3,12 and 13, who are similarly placed
as that of the petitioner to the cadre of Additional District Judge in the
year 2005 is in violation of Articles 14 and 16. For the foregoing reasons,
it is not necessary for us to direct opposite party no.2 to reconsider the
matter afresh as we have already examined the claim of the petitioner
and found that the petitioner is fit for promotion and his case has not
been recommended by the Full Court to the Government, which action is
unreasonable and arbitrary.
26
28. For the reasons assigned in answer to point no.1, we have
held that denying promotion to the petitioner by following an alien
procedure in awarding marks to the various aspects of the ACR of the
officers, whose claim was considered for promotion, is not permissible in
law. As per the Rules, referred to supra and from the record, we found
that denial of promotion to the petitioner is bad in law and we are of the
view that the petitioner is entitled to promotion and consequential
benefits. The ranking of the petitioner and other officers, whose claim was
considered, was inter changed on account of accrediting marks awarded
to them on the basis of relevant aspects, which is bad in law and,
therefore, opp.parties 3 to 13 are also entitled to the relief by placing
them in their appropriate place in the gradation list/ civil list.
29. Even assuming that the contentions urged on behalf of the
opposite parties that there is delay in approaching this Court from the
date of promotion given to opposite parties 3 to 13 while answering the
point no.(i) by recording valid reasons, we have recorded a finding that
denial of promotion to the petitioner is unjust, unfair and unreasonable.
Therefore, this Court has to exercise its judicial review power to undo the
justice caused to him. Hence, the contention raised in this regard by the
learned Government Advocate and other contesting opposite parties is
wholly untenable and is liable to be rejected.
30. In view of the foregoing reasons, we allow the writ petition
and issue Rule directing opposite party no.2 to extend the benefit of
27
promotion to the petitioner to the post of Additional District Judge (District
Judge cadre) as well as promotion to the Selection Grade District Judge
at par with his juniors with effect from the date on which his juniors have
got the above benefits and his rank be placed at the appropriate place in
the Gradation List/ Civil List of 2006 with other consequential service
benefits within a period of eight weeks. It is made clear that this order
shall not adversely affect the opposite parties 3 to 13, who have already
enjoyed the benefit of promotion and some of those who have got the
Selection Grade District Judge post. However, the seniority of opp.parties
3 to 13 be re-fixed in the cadre of Orissa Superior Judicial Service (Senior
Branch) (District Judge cadre) as per their seniority prevailing in the cadre
of Orissa Superior Judicial Service (Junior Branch).
31. In the facts and circumstances of the case, there shall be no
order as to cost.
..........................................
V.Gopala Gowda,C.,J.
Aruna Suresh, J.I agree.
............................................. Aruna Suresh, J.
Orissa High Court, Cuttack February 17,2012/ PKSahoo