THE HIGH COURT OF ORISSA : CUTTACK. W.P.(C) No.113O of 2003 In the matter of an application under Articles 226 and 227 of the Constitution of India. Sunil Kumar Dash .... .. Petitioner -Versus -- The District Judge --cum-- Appointing Authority, Keonjhar 85 Anr. .... .. Opposite Parties M/s. S.P.Mishra, S.K. Mishra, S. Mishra & S. Nanda. For petitioner - For Opp. Party no.1 --- Mr. P. Panda, ASC PRESENT : THE HON 'BLE CHIEF JUSTICE DR. B.S. CHAUHAN AND THE HON 'BLE MR. JUSTICE I. MAHANTY Date of hearing and judgment - 25 -O2-2009 I.Mahanty, J. Petitioner Sunil Kumar Dash, a Junior Clerk in the judgeship of Keonjhar, has sought to challenge the order dated 25.11.2002 passed by the .learned District Judge, Keonjhar giving promotion to opposite party no. 2, who was junior to the petitioner, on the ground that the petitioner has certain adverse entries in his Confidential Character Roll. 2. Case of the petitioner is that the petitioner joined as Junior Clerk in the judgeship of Keonjhar after having successfully passed in the competitive examination and was appointed on probation with effect from 4.3.1982. Petitioner also passed the Departmental Examination on 20.5.1988 and was confirmed as a Junior Clerk as on 1.
2.1992. Since then he was working as Junior Clerk in the office of
SDJM, Keonjhar. Petitioner “claims that he is the senior–most Junior
Clerk in the judgeship of Keonjhar and is placed at serial no. 1 in the
gradation list in the year 2002. As he possesses unblemished service
record, under Rule 10 of the Orissa District and Subordinate Courts
Ministerial Services ( Method “of Recruitment and Conditions of Service )
Rules, 1969 ( hereinafter called the “Rules”) he was eligible for promotion
to the post of Senior Clerk and therefore, he claims that he is entitled for
promotion to the next higher post, i.e., Senior Clerk. It is further
submitted that the petitionericompleted accounts training on 23.4.1992,
which is a mandatory requirement for being considered for promotion.
According to the petitioner, since the Senior Clerk working as Bench
Clerk to the SDJM, Anandapur was promoted to the post of Senior Upper
Davison clerk, the said postiof Senior Clerk fell vacant and instead of
promoting the present petitioner, opposite party no. 2, who was at serial
no. 3 in the gradation list was promoted to the said post vide order dated
25.11.2002.
3. The petitioner being aggrieved by the promotion of
opposite party no. 2, a junior to him, to the post of Senior Clerk
submitted a representation before the learned District Judge which was
rejected vide order dated 23.12.2002 on the ground that the petitioner
was not found suitable for promotion.
4. Mr. S. P. Misra, learned Senior Counsel appearing on
behalf of the petitioner, inter alia, submitted that the petitioner had been
communicated with the adverse remarks for the years 2000-01 and
1997-98 vide memos dated 22.12.2001 and 16.11.2002 under Annexures
4 and 5 respectively. The said adverse entries were communicated just
prior to the consideration of promotion to the post of Senior clerk and the
delayed communicated itself was mala fide since the petitioner did not
have time to make representation against the same. In terms of the G.A.
Department Memo No. 741/PRO. 11/8l(SE) dated 5.2.1982 instructions
were issued by the State Government indicating the manner and
procedure for recording, maintaining and communication of adverse
remarks in the Confidential Character Rolls of non-gazetted employees
and disposal of representations. Mr. Misra has placed reliance upon
Clause (xiv) of the aforesaid memo. Same is extracted below for
convenience and ready reference:
“(xiv) Communication of adverse remarks —
The C.Rs. on receipt, will be scrutinized in the
office of the appointing authority and all adverse
remarks will be communicated to the employee
by the officer entrusted with their maintenance
of CR3. The purpose of communication is to
ensure that the employee rectifies the defect at
the earliest. Hence, the utmost priority should
be given to communication of adverse remarks.
All such communications should normally issue
before 315′ December immediately following the
report period.” ( Emphasis added)
Learned Senior Counsel for’ the petitioner submitted that since the
adverse entries in the CCR of the petitioner had not been communicated
within the period prescribed same ought to have been ignored and could
– not have been the basis for assessing the petitioner for promotion as a
Senior Clerk.
5. Mr. Misra, learned Senior Counsel for the petitioner
also relied upon a judgment of the Supreme Court in Gurdial Singh F ijji
Vs. State of Punjab 85 Ors. : AIR 1979 SC 1622 , particularly the
observations of the Supreme Court in paragraph 17 thereof. In the said
judgment the Supreme Court held that the rules of natural justice
require that an adverse entry in a Confidential Character Roll cannot be
acted upon to deny the promotional opportunities unless it is
communicated to the person concerned so that he has an opportunity to
improve his Work and conduct or explain the circumstances leading to’
such report.
6. Mr. Misra also placed reliance upon another judgment
of the Supreme Court in Amar Kant Choudhary Vs. State of Bihar 85 Ors.,
AIR 1984 SC 531 and submitted that the petitioner’s nanie was not
included in the select list clue to some adverse remarks in the
Confidential Rolls which were either not communicated to him or against
which representation was made by him remained un–disposed of on the
date of selection.
7. Mr. P. Panda, learned Additional Standing Counsel
appearing on behalf of the Registrar, Civil Courts, Keonjhar placed heavy
reliance on the counter affidavit filed on behalf of the District Judge,
Keonjhar and stated that the petitioner was not given promotion to the
post of Senior Clerk considering his adverse entries in the CCR during
1997-98 and 2000-01 in terms of Rule 3(0) of the Orissa Civil Services
Criteria for Promotion Rules, 1992. Apart from this, Mr. Panda submitted
that averments made by Mr. Misra, learned Senior Counsel for the
petitioner that the adverse entries have no foundation was wholly
incorrect. He rather submitted that the petitioner had made
representations before this Court to expunge the adverse remarks in his
CCR and this Court had called for the substantiation report on
comments from the Reporting Officer for the relevant period vide letter
dated 8.10.2003. In response to the said letter, the concerned District
Judge had also submitted the substantiation report substantiating the
comments the comments in the CCR of the petitioner and same was
submitted to this Court on 20.12.2003 on the administrative side. He
further submitted that the adverse remarks in the C CR can be acted
upon even before final disposal of the representation.
In the light of the above, both facts and law, we have
to first find that the contention of the petitioner that the adverse entries
for 1997-98 and 2000-01 were communicated to the petitioner only a few
days before the selection was made for giving promotion to the post of
Senior Clerk is not borne out on record and is not a fact. We find that the
adverse entries for the year 2000-01 runs as follows :
“Mischievous element in office.
Needs to be kept under constant Watch.”
The aforesaid adverse entry was communicated to the petitioner on
22.12.2001. The adverse entry for the year 1997-98 was to the following
effect :
“Not mindful to his job.”
The said adverse entry was communicated to the petitioner vide letter
dated l6u.11.2002. Therefore, the assertion of the petitioner that the
adverse entries for both the periods were communicated to him few days
prior to the selection for promotion to the post of Senior Clerk done on
25.11.2002 is not a fact borne out on record. The adverse entry for
2000-01 Was communicated to the petitioner one year before, i.e., vide
letter dated 22.1 1.001.
8. Next contention of the petitioner that Clause (xiv) of
the G.A. Department memo. ‘referred to above regarding recording and
communication of adverse remarks in the Confidential Character Rolls of
non–gazetted employees is concerned, on a mere reading of the said
provision it is to be noted that the communication of adverse entries
should normally be issued before 31″ December immediately
following the report period. This4Rule has been clearly complied with in
so far as the adverse entry of the petitioner for 1997-98 is concerned. In
using the word ‘normally’ one is referring to something which is in
contradiction to abnormal orlexceptional. Thus, we are of the considered
View that the said provision manifestly is merely directory in nature and
not mandatory since it prescribes what should be done normally. In other
words, non–compliance of the same and non–communication within the
period stipulated it does not render the adverse entry in the CCR
meaningless.
9. In so far as the judgments relied upon by the petitioner
is concerned, as indicated hereinabove, We fully agree with the principles
of law laid down by the Hon’ble Supreme Court. Same do not apply to
the facts of the present case inasmuch as in the present case the adverse
entries had been communicated and there is no allegations to the
contrary and the only plea is that the communication had been made late
which, for the reasons indicated hereinabove, is also not a fact. Apart
from that, the Supreme Court in Amar Kant Choudhary (supra) was
dealing with a case where an employee had not been considered by the
Selection Committee for promotion due to adverse remarks and such
adverse remarks had not been communicated to the employee and had
been subsequently expunged by the State. From the facts of the present
case, it appears that the Selection Committee had considered the
petitioner for promotion, it reviewed the case of petitioner and did not
recommend him for promotion. The adverse remarks contained in the
CCR of the petitioner was ‘taken into consideration on the date of
consideration of promotion and such adverse remarks had in fact been
communicated to the employee. Further, in the present case the adverse
remarks have remained as on date and same have not been expunged.
Therefore, the case laws relied’ upon by the petitioner are also of little
consequence.
10. Apart from taking into consideration the facts and
circumstances indicated above, we have also perused the personal
records of the petitioner and by order dated 17.2.2009 we have referred
to various entries available in the service record of the petitioner, which
is extracted below 2
“As per the earlier order of this Court
dated 02.02.2009, the original service record of the
petitioner has been produced before us. In 1997-1998 the
adverse entry had been given by the learned District
Judge that he was not mindful to his job and that adverse
entry had been communicated to the petitioner on
16.11.2002. Again in 2000-2001, the petitioner had been
given an adverse entry as a mischievous element in office
and needs to be kept on constant watch. This adverse
entry was also communicated to the petitioner on
22.12.2001. The said adverse entries have been accepted
by the petitioner in paragraph 8 of the writ petition itself.
Further we have perused the record and it is
found that one Office Note was submitted by the
Sheristadar, District Court, Keonjhar, which is as under :
‘ Shri Sunil Kumar Dash, Jr. Clerk, now
working as Comparing Clerk in the Office of
the SDJM, Anandapur is the senior most Jr.
Clerk under the unreserved category as per the
gradation list. He has passed the departmental
examination on 20.5.1988. It appears from the
last five years CCR of Shri Dash, that there is
adverse remarks by the then District Judges
on 25.8.1998 and 20.10.2001, but the same
has been rejected and communicated to him in
this office L.No.349, dated 16.11.2002. The
adverse remark dated 25.8.1998 has been
communicated to Shri Dash recently on
16.11.2002. No representation against that
adverse remark is received from Shri Dash.
The time limit stipulated in paragraph (xiv) of
G.A. Department memo no.741 dated 5.2.1982
is six months from the date of receipt of
communication. So the period for the purpose
has not yet been lapsed. Till expunction of
adverse remarks and final disposal of
representation, if any, to be preferred thereof,
Shri Dash may not be considered suitable for
)7
promotion to higher post…. .
11. In the facts and circumstances of the case, we are of
the considered View that the petition lacks merit and is accordingly
dismissed, but without any order as to costs.
isv//V 9» MAW 97
57’/. 0/w»% .7?Jr’*”C£
Dr. B.S.Chauhan, C.J. I agree.
Orissa High Court, Cuttack. _
February 25, 2009/ RKDash.
