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2002 DIGILAW 117 (ORI)

JUGAL KISHORE SATPATHY v. STATE OF ORISSA

2002-02-26

B.P.DAS, R.K.PATRA

body2002
JUDGMENT : R.K. Patra, J. - The Petitioner filed O.A. No. 2082(C) of 1999 in the Orissa Administrative Tribunal, Cuttack Bench. Cuttack (hereinafter referred to as the Tribunal') for a direction to the Opposite parties No. 1 and 2 to consider his case for promotion to O.A.S. Class-l(Senior Branch) and O.A.S. Class-I (Supertime scale) with-retrospective effect when Opposite party 3 and 4 were promoted as such, and for consequential financial benefits. He also sought quashing of the Government notifications dated 27.6.1998 and 16.4.1999 by which he was denied financial benefits although he was given regular promotion to O.A.S. Class-I (Senior Branch) and O.A.S. Class-I (Supertime Scale). The Tribunal by its order dated 11.7.2001 at Annexure-4 rejected the claim for promotion, but allowed his second prayer by directing payment of differential salary from 20.7.1991 in O.A.S. Class-I (Senior Branch) and from 14.8.1997 in O.A.S. (Supertime Scale). In this writ petition, he seeks quashing of the aforesaid order of the Tribunal by which it refused to grant promotion with retrospective effect. 2. The case of the Petitioner is that on being appointed as Deputy Collector in O.A.S. Class-II, he joined the post on 28.7.1971 By Revenue Department notification No. 73306 dated 10.12.1981 he was appointed to O.A-S. Ciass-I (Junior Branch) on promotion in pursuance of Sub-rule (1) of Rule 10 of O.A.S. Class-I (Junior Branch) (Recruitment and Appointment by Promotion) Rules, 1977. By notification No. 73313 dated 10.12.1981 his services were placed at the disposal of Industries Department for appointment as Deputy Secretary to Orissa Khadi and Village Industries Board, Bhubaneswar. He accordingly joined as a Deputy Secretary in the aforesaid Khadi Board. His next promotion from O.A.S. Class-I (Junior Branch) was to O.A.S. Class-I (Senior Branch). In the year 1984 while the Petitioner was continuing as Sub-divisional Officer, Baliguda, he was placed under suspension on 12.5.1986 and had to face a departmental proceeding. In the year 1987, a vigilance case was instituted against him. His case was not considered because of the continuance of the suspension order and pendency of the vigilance case when on 15.10.1986 his juniors, i.e. Opposite party 3 and 4 were considered and promoted to the cadre of O.A.S. Class-I (Senior Branch). The Petitioner was acquitted on 10.11.1994 by the Special Judge, Sambalpur in the vigilance case (vide T.R. Case No. 38 of 1987). In the meantime, on 10.4.1988 he was rein stead in service. The Petitioner was acquitted on 10.11.1994 by the Special Judge, Sambalpur in the vigilance case (vide T.R. Case No. 38 of 1987). In the meantime, on 10.4.1988 he was rein stead in service. In the departmental proceeding he was awarded with the penalty of stoppage of two increments with censure. He made representation to the State Government against the aforesaid penalty and by order dated 30.3.1998 the State Government set aside the penalty imposed against him in the aforesaid departmental proceeding. He was never communicated with any adverse remarks, nor was his work ever adversely commented upon. He was accordingly expecting that the Government would re-consider his case for promotion when his juniors i.e., Opposite parties 3 and 4 were given promotion to O.A.S. Class-I (Senior Branch), and grant all other consequential service benefits. Unfortunately, the same was not done. However, the State Government by notification dated 27.6.1998 promoted him to O.A.S. Class-I (Junior Branch) on regular basis with effect from 20.7.1991. On' 17.10.1998 the Government passed order treating his period of suspension from 12.5.1986 to 10.4.1988 as on duty with all service benefits. On 16.4.1999 he was promoted to supertime scale of O.A.S. on regular basis with effect from 14.8.1997 with clear stipulation that he would not be entitled to any financial benefits. In the back-drop of the aforesaid facts, the Petitioner claimed that he was illegally deprived of being promoted to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and to supertime scale from 31.7.1995, the dates on which his juniors (Opposite parties 3 and 4) were respectively promoted to the aforesaid grades. 3. The stand of the State Government before the Tribunal was that two review meetings of the Selection Board were held on 23.10.1998 to consider Petitioner's retrospective promotion to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and to O.A.S (supertime scale) wherein it was decided that the Petitioner's promotion to O.A.S. Class-I (Senior Branch) from 20.7.1991 and supertime scale with effect from 14.8.1997 cannot be antedated. The review D.P.C. noted that the Petitioner was considered from promotion to O.A.S. Class-I (Senior Branch) in the Selection Board meeting held on 28.2.1987 and was considered unsuitable. The review D.P.C. noted that the Petitioner was considered from promotion to O.A.S. Class-I (Senior Branch) in the Selection Board meeting held on 28.2.1987 and was considered unsuitable. The decision not to antedate his promotion to Supertime Scale was consequent upon the decision not to antedate his promotion to Senior Branch because of which his inter se seniority fixed on the basis of his date of promotion to Senior Class-I on 20.7.1991 remained unchanged. 4. The Tribunal by the impugned order declined to grant relief to the Petitioner for promotion to O.A.S. Class-I (Senior Branch) and Supertime Scale with retrospective effect, i.e., from the dates on which his juniors (Opposite parties 3 and 4) were sp promoted to O.A.S. Class-I (Senior Branch) and Supertime Scale by holding that there is no justification for interfering with the decision taken in the Review meeting of the Selection Board held on 23.10.1998. 5. Shri Mishra, learned Counsel for the Petitioner, submitted that the Tribunal-misdirected itself in not appreciating the case of the Petitioner in proper perspective. According to him, when the Petitioner's junior's i.e., Opposite parties 3 and 4 were given promotion to O.A.S. Class-I (Senior Branch) and Supertime Scale, his case was not considered on the plea, that the vigilance case and the departmental proceedings were pending and when both the matters terminated in his favour, his case ought to have been considered and in absence of any adverse report, he ought to have been promoted to O.A.S. Class-I (Senior Branch) and Supertime Scale with retrospective effect. His further contention is that the Petitioner has already been given promotion to O.A.S. Class-I (Senior Branch) on regular basis with effect from 10.7.1991 and to Supertime Scale with effect from 14.8.1997 and the only obstacle against his promotion with retrospective effect could be the entries in the C.C.R. of the year 1986 but the same cannot be utilised against him because the countersigning authority while downgrading him did not reason any reason which had also not been communicated to him. 6. There is no dispute that the Opposite parties 3 and 4 who were juniors to the Petitioners came to be promoted to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and to Supertime Scale with effect from 31.7.1995. 6. There is no dispute that the Opposite parties 3 and 4 who were juniors to the Petitioners came to be promoted to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and to Supertime Scale with effect from 31.7.1995. It is also not in dispute that the Petitioner was not considered for promotion to O.A.S. Class-I (Senior Branch) when the Opposite parties 3 and 4 were considered on the plea that vigilance case and disciplinary proceeding were pending against him. The Vigilance Case (vide T.R. Case No. 38 of 1987) ended, in his favour when the Special Judge, Sambalpur acquitted him of the charge by his judgment and order dated 10.11.1994. Similarly, the imposition of penalty of stoppage of two increments in the departmental proceeding stood set aside when the State Government by its order dated 30.3.1998 exonerated him of the charges on his representation. In view of his acquittal in the criminal case and exonerated from the charges in the departmental proceedings, the Petitioner's case has to be relegated back to the year 1986 as if none of them (criminal case and departmental proceedings) was existent and his case is required to be considered for promotion to O.A.S. Class-I (Senior Branch) afresh, failing which it would amount to violation of equality clause enshrined in the Constitution. 7. For the purpose of consideration of Petitioner's case in 1985 what was required was his C.C.R. for the years 1982 to 1986. The Tribunal in the impugned order had noticed that the Selection Board in its meeting held on 23.10.1998 by taking into account the adverse remarks in his C.C.R. for the year 1981-82 (19.8.1982 to 5.3.1982) and for 1985-86 (in which he was rated as an average officer) declined to ante-date his promotion to O.A.S. Class-I (S.B.) with effect from 1986. 8. Shri Mishra's contention is that there was no adverse remarks in the C.C.R. of the Petitioner for the year 1985-86 and the remarks pertaining to 1981-82 being of a remote period they were not available to be taken into account. He also took exception to the so-called adverse report relating to the year 1988 on the ground that the countersigning authority having down-graded him without recording any reasons, the same is non-existent in the eye of law. 9. On our direction, the Additional Government Advocate has produced before us the C.C.Rs. of the Petitioner. He also took exception to the so-called adverse report relating to the year 1988 on the ground that the countersigning authority having down-graded him without recording any reasons, the same is non-existent in the eye of law. 9. On our direction, the Additional Government Advocate has produced before us the C.C.Rs. of the Petitioner. Although there is some adverse remark for the period from 19.8.1981 to 5.3.1982 but for the period commencing form March. 1982 to July 1982, he has been related as an excellent officer with a remark that he deserved promotion and his integrity was beyond doubt. For the subsequent period, i.e. from 3.8.1982 to 31.3.1983, the Revenue Divisional Commissioner (Southern Division) with whom the Member, Board of Revenue. Orissa concurred, had noted as follows: By inspection revealed a lot of improvement in office work. Had done excellent work under E.R.R.P. and I.B.D.P. works with seal and enthusiasm, official conduct, control of staff and public relation is very good. Nothing about his integrity has come to my notice. This being the position, the stray adverse remarks for the period 19.8.1981 to 5.3.1982 is of little significance particularly when his entire C.C.Rs. were taken into consideration and he was given promotion to O.A.S. Class-I (S.B.) on regular basis with effect from 30.7.1991. 10. Let us now look at the entries in the C.C.R. of the Petitioner relating to the year 1985. In consists of two parts. The first part pertains to the period from 28.5.1984 to 31.3.1985. The reporting officer has recorded his remarks for the said period as follows: Shri Satpathy is an officer of outstanding merit. Highly intelligent. His administrative ability is quite good. Has done good work during the period under report. Good official conduct. Nothing is heard against s integrity. Good control over staff, he is well-versed in rules of official justness. Keeps his table class. Deserves promotion. The Commissioner cum-Secretary of the Department has noted as follows: Shri Satpathy is an intelligent and energetic officer. From the aforesaid, it may be seen that there is nothing adverse against him during the first period. For the second period, i.e. from 1.4.1985 to 1.9.1985, the Reporting officer has noted as follows: His nothings and drafting are excellent. He keeps his table clean. Good grasping power. Well behaved. Has good control over staff. Official conduct is satisfactory. He is an officer of outstanding ability and seal. For the second period, i.e. from 1.4.1985 to 1.9.1985, the Reporting officer has noted as follows: His nothings and drafting are excellent. He keeps his table clean. Good grasping power. Well behaved. Has good control over staff. Official conduct is satisfactory. He is an officer of outstanding ability and seal. Deserves promotion. The counter-signing officer, however, has disagreed with the Reporting Officer and rated the Petitioner as on adverse one. The Supreme Court in U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, has observed as follows: ...All what is required by the authority recording confidential in the situation is to record reasons tor such down grading on the personal file of the officer concerned and inform him of the charge in the form of an advise. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may clacken in his work, relating secure by his one time achievement. This would be an undesirable situation. AH the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. (Emphasis supplied) In the aforesaid C.C.R. relating to the Petitioner for the second period from 1.4.1985 to 1.9.1986 the-countersigning officer has not recorded any reason as to why he disagreed with the Reporting Officer. Besides this, the same had not been admittedly communicated to the Petitioner. In view of the observations of the Supreme Court extracted above, the said C.C.R. cannot be sustained and utilised against the Petitioner. Moreover rating an officer as 'average' by itself cannot be taken as an adverse comment. Such remark may assume significance while considering the case of the concerned officer vis-a vis the claim of the Ors. . For the period from 10.11.1985 to 27.1.1986 and from 16.2.1986 to 31.6.1966 in the C.C.R. of the Petitioner it has been noted that the aforesaid periods are too short for assessment/comments. 11. In view of what has been stated above, we have no hesitation to hold that the Petitioner has been wronged and he merits consideration for promotion to O.A.S. Class-I (S.B.) with effect from 15.10.1986 as well as the other consequential promotional benefits including super-time scale. The' Tribunal clearly fell into error in not appreciating the case of the Petitioner in its proper perspective. The' Tribunal clearly fell into error in not appreciating the case of the Petitioner in its proper perspective. We accordingly set aside that part of the order of the Tribunal denying the Petitioner retrospective promotion to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and direct Opposite parties 1 and 2 to consider the case of the Petitioner for promotion to O.A.S. Class-I (Senior Branch) with effect from 15.10.1986 and to other consequential promotional benefits including super-time scale. This may be done within a period of two months of receipt of the order. The writ petition is accordingly allowed. There would be no order as to costs. B.P. Das, J. 12. I agree.