{"id":121557,"date":"2009-02-25T00:00:00","date_gmt":"2009-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-dash-vs-unknown-on-25-february-2009"},"modified":"2014-03-14T08:26:46","modified_gmt":"2014-03-14T02:56:46","slug":"sunil-kumar-dash-vs-unknown-on-25-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-dash-vs-unknown-on-25-february-2009","title":{"rendered":"Sunil Kumar Dash vs Unknown on 25 February, 2009"},"content":{"rendered":"
Orissa High Court<\/div>\n
Sunil Kumar Dash vs Unknown on 25 February, 2009<\/div>\n
THE HIGH COURT OF ORISSA : CUTTACK.\nW.P.(C) No.113O of 2003\n\nIn the matter of an application under Articles 226 and 227 of the\nConstitution of India.\n\nSunil Kumar Dash .... .. Petitioner\n-Versus --\n\nThe District Judge --cum--\n\nAppointing Authority,\n\nKeonjhar 85 Anr. .... .. Opposite Parties\n\nM\/s. S.P.Mishra, S.K. Mishra,\nS. Mishra & S. Nanda.\n\nFor petitioner -\nFor Opp. Party no.1 --- Mr. P. Panda, ASC\n\nPRESENT :\nTHE HON 'BLE CHIEF JUSTICE DR. B.S. CHAUHAN\n\nAND\n\nTHE HON 'BLE MR. JUSTICE I. MAHANTY\n\nDate of hearing and judgment - 25 -O2-2009\n\nI.Mahanty, J. Petitioner Sunil Kumar Dash, a Junior Clerk in the\njudgeship of Keonjhar, has sought to challenge the order dated\n25.11.2002 passed by the .learned District Judge, Keonjhar giving\npromotion to opposite party no. 2, who was junior to the petitioner, on\nthe ground that the petitioner has certain adverse entries in his\n\nCon\ufb01dential Character Roll.\n\n\n\n2. Case of the petitioner is that the petitioner joined as\nJunior Clerk in the judgeship of Keonjhar after having successfully\npassed in the competitive examination and was appointed on probation\nwith effect from 4.3.1982. Petitioner also passed the Departmental\nExamination on 20.5.1988 and was con\ufb01rmed as a Junior Clerk as on\n1.<\/pre>\n
2.1992. Since then he was working as Junior Clerk in the office of<\/p>\n
SDJM, Keonjhar. Petitioner “claims that he is the senior–most Junior<\/p>\n
Clerk in the judgeship of Keonjhar and is placed at serial no. 1 in the<\/p>\n
gradation list in the year 2002. As he possesses unblemished service
\nrecord, under Rule 10 of the Orissa District and Subordinate Courts
\nMinisterial Services ( Method “of Recruitment and Conditions of Service )
\nRules, 1969 ( hereinafter called the “Rules”) he was eligible for promotion
\nto the post of Senior Clerk and therefore, he claims that he is entitled for
\npromotion to the next higher post, i.e., Senior Clerk. It is further
\nsubmitted that the petitionericompleted accounts training on 23.4.1992,
\nwhich is a mandatory requirement for being considered for promotion.
\nAccording to the petitioner, since the Senior Clerk working as Bench
\nClerk to the SDJM, Anandapur was promoted to the post of Senior Upper
\nDavison clerk, the said postiof Senior Clerk fell vacant and instead of
\npromoting the present petitioner, opposite party no. 2, who was at serial
\nno. 3 in the gradation list was promoted to the said post vide order dated<\/p>\n
25.11.2002.\n<\/p>\n
3. The petitioner being aggrieved by the promotion of
\nopposite party no. 2, a junior to him, to the post of Senior Clerk<\/p>\n
submitted a representation before the learned District Judge which was<\/p>\n
rejected vide order dated 23.12.2002 on the ground that the petitioner
\nwas not found suitable for promotion.\n<\/p>\n
4. Mr. S. P. Misra, learned Senior Counsel appearing on
\nbehalf of the petitioner, inter alia, submitted that the petitioner had been
\ncommunicated with the adverse remarks for the years 2000-01 and
\n1997-98 vide memos dated 22.12.2001 and 16.11.2002 under Annexures
\n4 and 5 respectively. The said adverse entries were communicated just
\nprior to the consideration of promotion to the post of Senior clerk and the
\ndelayed communicated itself was mala fide since the petitioner did not
\nhave time to make representation against the same. In terms of the G.A.
\nDepartment Memo No. 741\/PRO. 11\/8l(SE) dated 5.2.1982 instructions
\nwere issued by the State Government indicating the manner and
\nprocedure for recording, maintaining and communication of adverse
\nremarks in the Confidential Character Rolls of non-gazetted employees
\nand disposal of representations. Mr. Misra has placed reliance upon<\/p>\n
Clause (xiv) of the aforesaid memo. Same is extracted below for<\/p>\n
convenience and ready reference:\n<\/p>\n
“(xiv) Communication of adverse remarks —\n<\/p>\n
The C.Rs. on receipt, will be scrutinized in the
\noffice of the appointing authority and all adverse
\nremarks will be communicated to the employee
\nby the officer entrusted with their maintenance
\nof CR3. The purpose of communication is to
\nensure that the employee rectifies the defect at
\nthe earliest. Hence, the utmost priority should
\nbe given to communication of adverse remarks.
\nAll such communications should normally issue
\nbefore 315′ December immediately following the
\nreport period.” ( Emphasis added)<\/p>\n
Learned Senior Counsel for’ the petitioner submitted that since the
\nadverse entries in the CCR of the petitioner had not been communicated<\/p>\n
within the period prescribed same ought to have been ignored and could<\/p>\n
– not have been the basis for assessing the petitioner for promotion as a<\/p>\n
Senior Clerk.\n<\/p>\n
5. Mr. Misra, learned Senior Counsel for the petitioner
\nalso relied upon a judgment of the Supreme Court in Gurdial Singh F ijji
\nVs. State of Punjab 85 Ors. : AIR 1979 SC 1622 , particularly the
\nobservations of the Supreme Court in paragraph 17 thereof. In the said
\njudgment the Supreme Court held that the rules of natural justice
\nrequire that an adverse entry in a Con\ufb01dential Character Roll cannot be
\nacted upon to deny the promotional opportunities unless it is<\/p>\n
communicated to the person concerned so that he has an opportunity to<\/p>\n
improve his Work and conduct or explain the circumstances leading to’<\/p>\n
such report.\n<\/p>\n
6. Mr. Misra also placed reliance upon another judgment
\nof the Supreme Court in Amar Kant Choudhary Vs. State of Bihar 85 Ors.,
\nAIR 1984 SC 531 and submitted that the petitioner’s nanie was not
\nincluded in the select list clue to some adverse remarks in the
\nConfidential Rolls which were either not communicated to him or against
\nwhich representation was made by him remained un–disposed of on the<\/p>\n
date of selection.\n<\/p>\n
7. Mr. P. Panda, learned Additional Standing Counsel<\/p>\n
appearing on behalf of the Registrar, Civil Courts, Keonjhar placed heavy<\/p>\n
reliance on the counter affidavit filed on behalf of the District Judge,
\nKeonjhar and stated that the petitioner was not given promotion to the
\npost of Senior Clerk considering his adverse entries in the CCR during
\n1997-98 and 2000-01 in terms of Rule 3(0) of the Orissa Civil Services
\nCriteria for Promotion Rules, 1992. Apart from this, Mr. Panda submitted
\nthat averments made by Mr. Misra, learned Senior Counsel for the
\npetitioner that the adverse entries have no foundation was wholly
\nincorrect. He rather submitted that the petitioner had made
\nrepresentations before this Court to expunge the adverse remarks in his
\nCCR and this Court had called for the substantiation report on
\ncomments from the Reporting Officer for the relevant period vide letter
\ndated 8.10.2003. In response to the said letter, the concerned District
\nJudge had also submitted the substantiation report substantiating the
\ncomments the comments in the CCR of the petitioner and same was
\nsubmitted to this Court on 20.12.2003 on the administrative side. He
\nfurther submitted that the adverse remarks in the C CR can be acted<\/p>\n
upon even before \ufb01nal disposal of the representation.\n<\/p>\n
In the light of the above, both facts and law, we have
\nto \ufb01rst find that the contention of the petitioner that the adverse entries
\nfor 1997-98 and 2000-01 were communicated to the petitioner only a few
\ndays before the selection was made for giving promotion to the post of
\nSenior Clerk is not borne out on record and is not a fact. We \ufb01nd that the<\/p>\n
adverse entries for the year 2000-01 runs as follows :\n<\/p>\n
“Mischievous element in office.\n<\/p>\n
Needs to be kept under constant Watch.”\n<\/p>\n
The aforesaid adverse entry was communicated to the petitioner on<\/p>\n
22.12.2001. The adverse entry for the year 1997-98 was to the following
\neffect :\n<\/p>\n
“Not mindful to his job.”\n<\/p>\n
The said adverse entry was communicated to the petitioner vide letter
\ndated l6u.11.2002. Therefore, the assertion of the petitioner that the
\nadverse entries for both the periods were communicated to him few days
\nprior to the selection for promotion to the post of Senior Clerk done on
\n25.11.2002 is not a fact borne out on record. The adverse entry for
\n2000-01 Was communicated to the petitioner one year before, i.e., vide<\/p>\n
letter dated 22.1 1.001.\n<\/p>\n
8. Next contention of the petitioner that Clause (xiv) of
\nthe G.A. Department memo. ‘referred to above regarding recording and
\ncommunication of adverse remarks in the Confidential Character Rolls of
\nnon–gazetted employees is concerned, on a mere reading of the said
\nprovision it is to be noted that the communication of adverse entries
\nshould normally be issued before 31″ December immediately
\nfollowing the report period. This4Rule has been clearly complied with in
\nso far as the adverse entry of the petitioner for 1997-98 is concerned. In
\nusing the word ‘normally’ one is referring to something which is in
\ncontradiction to abnormal orlexceptional. Thus, we are of the considered
\nView that the said provision manifestly is merely directory in nature and
\nnot mandatory since it prescribes what should be done normally. In other<\/p>\n
words, non–compliance of the same and non–communication within the<\/p>\n
period stipulated it does not render the adverse entry in the CCR
\nmeaningless.\n<\/p>\n
9. In so far as the judgments relied upon by the petitioner
\nis concerned, as indicated hereinabove, We fully agree with the principles
\nof law laid down by the Hon’ble Supreme Court. Same do not apply to
\nthe facts of the present case inasmuch as in the present case the adverse
\nentries had been communicated and there is no allegations to the
\ncontrary and the only plea is that the communication had been made late
\nwhich, for the reasons indicated hereinabove, is also not a fact. Apart
\nfrom that, the Supreme Court in Amar Kant Choudhary (supra) was
\ndealing with a case where an employee had not been considered by the
\nSelection Committee for promotion due to adverse remarks and such
\nadverse remarks had not been communicated to the employee and had
\nbeen subsequently expunged by the State. From the facts of the present
\ncase, it appears that the Selection Committee had considered the
\npetitioner for promotion, it reviewed the case of petitioner and did not
\nrecommend him for promotion. The adverse remarks contained in the
\nCCR of the petitioner was ‘taken into consideration on the date of
\nconsideration of promotion and such adverse remarks had in fact been
\ncommunicated to the employee. Further, in the present case the adverse
\nremarks have remained as on date and same have not been expunged.\n<\/p>\n
Therefore, the case laws relied’ upon by the petitioner are also of little
\nconsequence.\n<\/p>\n
10. Apart from taking into consideration the facts and<\/p>\n
circumstances indicated above, we have also perused the personal<\/p>\n
records of the petitioner and by order dated 17.2.2009 we have referred<\/p>\n
to various entries available in the service record of the petitioner, which<\/p>\n
is extracted below 2<\/p>\n
“As per the earlier order of this Court
\ndated 02.02.2009, the original service record of the
\npetitioner has been produced before us. In 1997-1998 the
\nadverse entry had been given by the learned District
\nJudge that he was not mindful to his job and that adverse
\nentry had been communicated to the petitioner on
\n16.11.2002. Again in 2000-2001, the petitioner had been
\ngiven an adverse entry as a mischievous element in office
\nand needs to be kept on constant watch. This adverse
\nentry was also communicated to the petitioner on
\n22.12.2001. The said adverse entries have been accepted
\nby the petitioner in paragraph 8 of the writ petition itself.\n<\/p>\n
Further we have perused the record and it is
\nfound that one Office Note was submitted by the
\nSheristadar, District Court, Keonjhar, which is as under :\n<\/p>\n
‘ Shri Sunil Kumar Dash, Jr. Clerk, now
\nworking as Comparing Clerk in the Office of
\nthe SDJM, Anandapur is the senior most Jr.
\nClerk under the unreserved category as per the
\ngradation list. He has passed the departmental
\nexamination on 20.5.1988. It appears from the
\nlast \ufb01ve years CCR of Shri Dash, that there is
\nadverse remarks by the then District Judges
\non 25.8.1998 and 20.10.2001, but the same
\nhas been rejected and communicated to him in
\nthis of\ufb01ce L.No.349, dated 16.11.2002. The
\nadverse remark dated 25.8.1998 has been
\ncommunicated to Shri Dash recently on
\n16.11.2002. No representation against that
\nadverse remark is received from Shri Dash.\n<\/p>\n
The time limit stipulated in paragraph (xiv) of
\nG.A. Department memo no.741 dated 5.2.1982
\nis six months from the date of receipt of
\ncommunication. So the period for the purpose
\nhas not yet been lapsed. Till expunction of
\nadverse remarks and \ufb01nal disposal of
\nrepresentation, if any, to be preferred thereof,
\nShri Dash may not be considered suitable for<\/p>\n
)7<\/p>\n
promotion to higher post…. .\n<\/p>\n
11. In the facts and circumstances of the case, we are of
\nthe considered View that the petition lacks merit and is accordingly<\/p>\n
dismissed, but without any order as to costs.\n<\/p>\n
isv\/\/V 9\u00bb MAW 97
\n57’\/. 0\/w\u00bb% .7?Jr’*”C\u00a3<\/p>\n
Dr. B.S.Chauhan, C.J. I agree.\n<\/p>\n
Orissa High Court, Cuttack. _
\nFebruary 25, 2009\/ RKDash.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Sunil Kumar Dash vs Unknown on 25 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-121557","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nSunil Kumar Dash vs Unknown on 25 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-dash-vs-unknown-on-25-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunil Kumar Dash vs Unknown on 25 February, 2009 - 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