JUDGMENT
R.K. Patra, J.
1. Both the aforesaid miscellaneous applications spring from the main contempt application (Original Criminal Misc. Case No. 578 of 2000).
2. Three writ petitions bearing O. J. C. Nos. 8712 of 1994, 10774 of 1997 and 3577 of 1999 were filed in this Court by way of public interest litigation making identical allegations with a prayer for directing investigation by the C. B. I. into the allegations of corruption and malpractices etc. against opposite party No. 5, an officer belonging to the I.A.S. in the Orissa cadre. They were heard together and disposed of by a common judgment dated 9-5-2000 with direction to the State Government, inter alia, to conduct a special audit by an audit team constituted by the Accountant General, Orissa, into different allegations of unauthorised diversion of funds, improper expenditure thereof and to fix responsibility if irregularity, illegality or misuse of fund is found and to take appropriate action. The Chief Secretary of the Government was directed to ensure that the audit team was constituted within a period of one month from the date of communication of the Court’s order and the audit team was to submit its report within three months from it’s constitution. The State Government was also directed to take prompt follow-up action on the basis of the said report. There were also other directions issued by this Court which need not be dealt with at this stage.
3. One of the writ petitioners (Pravash Kumar Sahoo whose writ petition was O. J. C. No. 10774 of 1997) has Sled the contempt application (Original Crl. Misc. Case No. 578 of 2000) alleging that the State Government officials by forming an unholy alliance with the opposite party No. 5 have not complied with the Court’s order and instead are out to give promotion to him to the super-time scale post despite the fact that in the audit report severe comments have been made against him.
4. This Court on 14-11-2000 while issuing notice in the contempt case passed order in the Misc. Case No. 94 of 2000 as follows :
“In view of the findings recorded and directions given by this Court in O. J. C. No. 10774 of 1997 against Shri P. K. Nayak, I. A. S. (opp. party No. 5), his case for further promotion and posting, if any, on the basis of such promotion may not be finalised.”
Being aggrieved by the interim order the opposite party No, 5 filed Special Leave Petition No. 20623 of 2000 in the Hon’ble Supreme Court. Their Lordships disposed of the same by order dated 8-12-2000 observing that he (opposite party No. 5) should have been heard “and at least he should have been made a party in the proceedings.” Their Lordships permitted him to make an application to this Court for being impleaded as a party in the proceedings and asked us to modify or vacate the interim order, if any application is moved on his behalf after giving opportunity to all concerned. In obedience to the said order, the opposite party No. 5 has filed Misc. Case No. 118 of 2000 on 13-12-2000 in this Court praying to vacate the interim order. The matter had to be adjourned as the local advocates had ceased work in protest against imposition of professional tax on them. The opposite party No. 5 during that period appealed in person and since some affidavits were filed on behalf of the petitioner, the matter had to be adjourned at his instance. We also though that the opposite party No. 5 would be prejudiced in absence of his advocate.
5. We have heard Shri M. S. Panda, counsel for the petitioner; Shri J. Patnaik, learned Senior Counsel for the opposite party No. 5 and Shri S. K. Nayak, learned Government
Advocate for the State. We have also perused the files produced by the State Government on our direction.
6. The opposite party No. 5 belongs to 1984 batch of I. A. S. and joined Service in August, 1984. A meeting of the
Screening Committee was held on 22-10-1999 to consider the cases of six I. A. S. Officers (1984 batch) including that of opposite party No. 5 for promotion to the super time scale of I.A.S. The Committee after finding all the of them suitable for promotion, opined that the matter should be examined by the Administrative Department for taking appropriate Government order. The Government accepted the recommendation of the Screening Committee on 4-12-1999. It may be stated that in letter No. 11030/20/75-AIS (II) dated 27-12-1975 the Ministry of Personnel, Public Grievances and Pensions of the Government of India has laid down inter alia that for promotion to the super time scale post, the zone of consideration shall consist of all the members of the I. A. S. who have completed 16 years in service.
It is the contention of Shri Panda that as opposite party No. 5 had not completed 16 years in the service by 22-10-1999 (when the Screening Committee met) he did not come within the zone of consideration and, as such, the recommendation relating to him is vitiated. The learned counsel further submitted chat the opposite party No. 5 was at the relevant time the Secretary to the Chief Minister and was in a position to exert influence on other senior officers and by forming an unholy alliance with the then Chief Secretary got issued office memorandum No. 22336/ A1S dated 2-8-1999 by the General Administration Department relaxing/reducing the period to “15 years of service” so that his case could be considered. He also pointed out that the mala fides of the concerned officers are apparent from the fact that the said office memorandum in which stipulation of completing of 16 years was reduced to 15 years was withdrawn in General Administration Department Office Memorandum No. 38536/AIS dated 30-12-1999 after giving opposite party No. 5 promotion.
Shri Patnaik, learned counsel appearing for opposite party No. 5, submitted that under Government of India letter No. 11030/20/75-AIS (II) dated 27-12-1975 the 1984 batch I.A.S. Officers were eligible to be considered for promotion to super time scale during their currency of 16th years of service in 1999 and accordingly the Screening Committee considered all the 1984 batch I.A.S. Officers including opposite party No. 5 and it was not a case of consideration by the Screening Committee of a solitary case. He further submitted that it has been the practice followed throughout the country that eligibility year of an I.A.S. officer for consideration for promotion to super time scale sets in in the 16th year itself. In support of this submission, Shri Patnaik referred to some instances of officers in the Andhra Pradesh I.A.S, Cadre who were given promotion to super-time scale although they had not completed 16 years of their services. With regard to the withdrawal of office memorandum No. 22336/AIS dated 2-8-1999, Shri Patnaik submitted that it was withdrawn surreptitiously with male fide intention. In this connection, he placed reliance on paragraph-9 of the additional affidavit of opposite party No. 5 filed on 25-1-2001 wherein he has stated that when the then Chief Minister (Dr. Giridhari Gomango) resigned on 6-12-1999 and Shri Hemananda Biswal succeeded him, the then Chief Secretary and the then Special Secretary in the General Administration Department submitted another file to the new Chief Minister Sri Hemananda Biswal and obtained orders for withdrawal of the office memorandum No. 22336/AIS dated 2-8-1999. Shri Patnaik also supported the promotion of opposite party No. 5 to super-time scale relying on the instruction of the Government of India in the Ministry of Personnel, Public Grievances and Pensions in letter No. 20011/4/92-AIS (II) dated 28-3-2000 which reads as follows :
"IV. Promotion in the super-time scale. The members of the Service who are working in the Selection Grade and have completed 16 years of service shall be eligible for appointment in the super-time scale at any time during the year of their eligibility, subject to availability of vacancies in this grade".
7. Shri Panda besides challenging the proceedings of the Screening Committee on the grounds stated above, submitted that the opposite parties are fully aware that the present contempt proceeding is pending for non-compliance of the direction made in O. J. C. Nos. 8712 of 1994, 10774 of 1997 and 3577 of 1999 and being fully cognizant of this fact they deliberately suppressed the special audit report (which was submitted by the Accountant General on 25-9-2000 pursuant to the direction of this Court) and passed the promotion order.
8. From the submissions made by the counsel for the parties, the following two questions emerge for consideration:
(A) Was the recomendation of the Screening Committee in its meeting dated 22-10-1999 recommending the opposite party No. 5 to super-time scale was valid in law ?
(B) Whether opposite party No. 5 can at all be promoted and given any posting order ?
9. Question No. (A) :
The Government of India, Ministry of Personnel, Public Grievances and Pensions in letter No. 11030/20/75-AIS (II) dated 27th December, 1975 has laid down the guidelines which should be followed for promotion to the different scales including super-time scale. Its relevant portion reads as follows :
“III. PROMOTION TO SUPER-TIME SCALE POSTS:
(1) Composition of the Screening Committee :
The Screening Committee may consist…..
as members.
(2) Zone of consideration :
The zone of consideration may consist of all the
members of the Indian Administrative Service who have completed 16 years in the service.”
The aforesaid unmistakably stipulates that such of the Officers who have completed 16 years in the service are only eligible for consideration for promotion to the super-time scale posts. Admittedly, opposite party No. 5 belongs to 1984 batch of I.A.S. and joined the service in August, 1984. By the time the Screening Committee took up bis case for consideration (22-10-1999), he had not completed 16 years in the service. He was thus not within the zone of consideration. As such, he could not have been brought into the arena of consideration. There is no dispute that the Screening Committee took up opposite party No. 5’s case for consideration basing on the State Government’s General Administration Department Office Memorandum No. 22336/AIS, dated 2-8-1999 which relaxed the condition of “completion of 16 years of service” to “completion of 15 years of service”. Such relaxation made by the State Government is unauthorised being contrary to the specific instructions issued by the Government of India. Instructions/guidelines are issued for observance and not to commit breach thereof. Shri Patnaik’s citation to some cases of officers in the Andhra Pradesh I.A.S. cadre who were said to have been given promotion to the super-time scale although they had not completed 16 years of service is of no avail for the simple reason that those instances cannot be a canon for interpretation of any rule/instructions/guidelines.
It is relevant to observe here that the relaxation made by the State Government in its office memorandum dated 2-8-1999 was objected to by the Government of India when the Secretary in the Ministry of Personnel, Public Grievance and Pensions in his D. O. Utter No. 20011/2/99-AIS-II dated 13-10-1999 wrote to the then Chief Secretary of the State Government stating that “the stipulation of 15 years service, as
mentioned above, therefore needs to be withdrawn immediately”.
On receipt of that letter the matter was examined and the then Chief Secretary in his note dated 15-12-1999 opined that there are a number of provisions in the Office Memorandum dated 2-8-1999 which are contrary to the rules and executive instructions of the Government of India and to avoid confusion and
conflicting claims in future it would be appropriate to withdraw the same. After obtaining the order from the Chief Minister, the General Administration Department’s Office Memorandum No. 38536/AIS dated 30-12-1999 was issued withdrawing the earlier Memorandum dated 2-8-1999. The withdrawal of the Office Memorandum dated 2-8-1999 is a clear admission by the State Government that the relaxation made with regard to the zone of consideration was void.
At this stage, it would be appropriate to note the alternative argument of Shri Patnaik that promotion of opposite party No. 5 can also be supported in view of the letter No. 20011/4/99-AIS(II) dated 28-3-2000 of the Government of India in the Ministry of Personel, Public Grievances and Pensions which provides that the members of the service who are working in the selection grade and have completed 16 years of service shall be eligible for appointment in the super-time scale at any time during the year of their eligibility subject to availability of vacancies in that grade. The said submission has no merit inasmuch as the Government of India’s letter dated 28-3-2000 has no retrospective effect which was issued much after all that happened as delineated above. Besides this, the recommendation of the Screening Committee dated 22-10-1999 being void from the out-set for all the above reasons, it cannot resuscitate prospectively with effect from 28-3-2000, i.e., the date of Government of India’s letter.
The net result of the foregoing discussions is that the proceeding of the Screening Committee dated 22-10-1999 recommending opposite party No. 5 to super-time scale post is void ab initio and no promotion/posting order can be given to him on such void proceeding.
Conceding for the sake of argument that the case of opposite party No. 5 was validly considered, the proceeding of the Screening Committee dated 22-10-1999 in respect of him has to remain in sealed cover for the reasons mentioned hereinafter. In this connection, we may profitably refer to the decision of the Hon’ble Supreme Court in Union of India v. R. S. Sharma, A.I.R. 2000 S.C. 2337.
Question No. (B):
Answer to this question mainly depends on the guidelines regarding promotion to various grades outlined by the Government of India in letter No, 20011/4/92-AIS (II) dated 28-3-2000 in the Ministry of Personnel, Public Grievances and Pensions on the basis of which the opposite party No. 5 has staked his claim for promotion. The said letter contains enclosures as Annexures-I and II. On careful perusal of the Government of India’s letter and its enclosures it appears that although para-(IV) of Annexure-I lays down that members of the service who are working in selection grade and have completed 16 years of service shall be eligible for appointment in the super-time scale at any time during the year of their eligibility, it is hedged with certain limitations which may be briefly indicated :
(i) Determination of vacancy (vide para-3 of Annexure-(II). (ii) Furnishing of integrity certificate of the concerned officer (vide para 4.8 of Annexure-II). (iii) Placement of particulars before the Screening Committee of the Officers in respect of whom a charge has been issued and disciplinary proceeding is pending (vide para 11.1 of Annesure-II). (iv) Vigilance clearance while implementing the Screening Committee's recommendation (vide para 15 of Annexure-II which provides that a clearance from vigilance angle should be available before making actual promotion to ensure that no disciplinary proceeding is pending against any officer).
It is not the case of the State Government that opposite party No. 5’s case for promotion to super-time scale post was taken up for consideration pursuant to guidelines issued by the Government of India in its letter dated 28-3-2000. Therefore, if at all it is taken up, his case has to be considered keeping in view the relevant provisions in Annexures-I and II and on the following factual basis :
He has now been served with statement of articles of charge in Memorandum No. 45166/A.I.S.-I dated 30-12-2000 and asked to submit his written statement of defence. The said memorandum was issued to hold an inquiry against him under Rule 8 of A. I, S. (D. & A.) Rules, 1969 for the irregularities committed by him during his incumbency as District Magistrate-cum-Collector-cum-Chairman, Z. S. S., Angul in connection with not following the procedure prescribed for purchase of materials for the Z. S. S., Angul.
This Court while deciding the three writ petitions required the State Government to find out whether the Collector had the legal authority to divert and spend the District Rural Development Authority (in short ‘D. R. D. A.’) and peripheral funds for repairing, renovation and beautification of the ‘Sabbaghar’ and fix responsibility and take administrative action against the erring officials if irregularity is found. The Accountant General (Audit) in his letrer dated 25-9-2000 did make the Special Audit Report avilable to the Government whereinit was indicated inter alia that the Project Director, D. R. D. A. incurred an expenditure of Rs. 14.91.656/- out of I. R. D. P. interest money during 1994-95 to 1996-97 towards renovation of ‘Sabhaghar’ belonging to the Revenue Department and as the work did not fall under any of the approved activities, incurring heavy expenditure of Rs. 14,91,656/- to a building not belonging to the D. R. D. A. was irregular. Admittedly, the opposite party No. 5 was the District Collector-cum-Chairman & Project Director of Angul D. R. D. A.. The Government of India in the Ministry of Rural Development in letter No. 19012/2/93/IRD dated 12-7-1994 issued circular to all the State Governments stating that the Chairman and the Project Director, D. R. D. A. shall not utilise the funds even temporarily for any other purpose than for the programmes for which those funds are placed at their disposal with clear stipulation that the instructions contained in the letter are to be observed strictly and the Chairman and the Project Director of the D. R. D, A. would be personally held responsible for observance thereof. If any instance of temporary diversion of
fund is noticed, they would be surcharged with the amount lost by the D. R. D. A. on this account and stern action will be taken against them. In view of the fact that audit has found the diversion of D. R. D. A. fund for renovation of the ‘Sabhaghar’ as unauthorised, there is clear violation of the instructions contained in the Government of India’s letter. Shri Patnaik by referring to letter No. 4049 dated 10-6-1994 (Annexure-D/5) written by the Sub-Col lector, Angul to the Project Officer, D.R.D.A, contended that the’ Sabhaghar’ had been transferred to the D. R. D. A. and, as such, no exception can be taken for spending of D. R. D. A funds towards its renovation. The aforesaid letter was written in reference to letter No. 657 dated 20-5-1994 of the Project Officer, D. R. D. A., As that letter was not available, on our direction the learned Government Advocate has produced the relevant file. On reading of letter No. 657 dated 20-5-1994 of the Project Officer, D. R. D. A. addressed to the Sub-Collector it is found that the Collector-cum-Chairman, D. R. D. A. decided to transfer the ‘Sabhaghar’ to D. R. D. A., Angul for using the same as its meeting-cum-training hall. It further appears from the file that the Sub-Collector, Angul in his letter No. 3500 dated 24-5-1994 brought to the notice of the Project Officer, D. R. D. A. that the ‘Sabhaghar’ being under the control of the Revenue Department, its approval is necessary for transfer of the same to the control of D. R. D. A.. Admittedly, no approval had been taken from the Revenue Department with regard to transfer of ‘Sabhaghar’ to D. R. D. A..
In the circumstances, the case of promotion of opposite party No. 5 has to be considered keeping all the facts mentioned above and other relevant facts which may be necessary for the purpose in view. In the event his case is considered afresh, the sealed cover procedure has to be adopted.
10. Before drawing the curtain, it would be appropriate to indicate briefly the reasons which persuaded us to pass the interim order on 14-11-2000 in the contempt application. At the cost of repetition, we may state that the contempt application has been filed alleging inter alia that the opposite parties instead of
complying with the direction of this Court made on 9-5-2000 in the writ petitions, are out to give promotion to the opposite party No. 5 which amounts to contempt of Court. It is not in dispute that the Accountant General (Audit) submitted the Special Audit Report to the Government on 25-9-2000 in which it has been found that the diversion of D. R. D. A. funds for renovation of the ‘Sabhaghar’ was unauthorised and this indictment is aimed at opposite party No, 5 because it was done when he was the Collector-cum-Chairman-cum-Project Officer, D.R.D.A., Angul. The State Government and its officials in the face of the direction of this Court and the findings recorded in the audit report should not have rushed to approve his promotion on the basis of the Screening Committee’s recommendation. It ex facie amounts to contempt of Court. We, therefore, considered that it would be mete and proper that the opposite parties should be restrained from approving his promotion till the contempt matter is finally disposed of. Accordingly, we passed the interim order.
11. For all the reasons afore-mentioned, the prayer of opposite party No. 5 to vacate the interim order dated 14-11-2000 is hereby rejected and the order is made absolute.
12. Both the miscellaneous cases are accordingly disposed of.
Ch. P.K. Misra, J.
13. I agree.
14. Misc. cases disposed of.