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2006 DIGILAW 684 (ORI)

Sangram Keshari Mishra v. Union of India

2006-09-20

A.K.PARICHHA, I.M.QUDDUSI

body2006
JUDGMENT A. K. PARICHHA, J. : The petitioner, who is an officer of Indian Administrative Service of 1985 batch belonging to Orissa Cadre has filed this writ petition to quash the order dated 30.9.2005 passed by the Central Administrative Tribunal, Cuttack Bench in O.A. No.782 of 2005. 2. The case of the petitioner is that some time in 2005 opp.party No.1 called upon the opp.party No.2 to forward the Annual Confidential Reports (in short, ‘the A.C.Rs’) of 1985 I.A.S. Officers for consideration of their case for empanelment as Joint Secretary to Government of India, but although the A.C.Rs of opp.parties 3 to 6, who are also I.A.S. Officers of 1985 batch of Orissa Cadre and junior to him, were forwarded his A.C.Rs. for the years 1992-93, 1993-94, 1995-96, 2000-2001, 2001-02, 2002-03 and 2004-05 were not forwarded in spite of request and personal approach. According to the peti¬tioner, his A.C.Rs. were withheld by the opp.party No.2 with mala fide intention because while working as Commissioner of Consoli¬dation he detected a scam involving hundreds of acres of land near Bhubaneswar which adversely affected some influential per¬sons. The petitioner alleges that in spite of his outstanding ca¬reer, for the withholding of the A.C.Rs by opp.party No.2, his case could not be considered by the opp.party No.1 for empanel¬ment as Joint Secretary to Govt. of India. Since the opp.party No.2 took a discriminatory attitude towards him and in spite of all approach did not forwarded the A.C.Rs.to opp.party No.1, he had to file O.A. No.782 of 2005 before the Central Administrative Tribunal, Cuttack Bench alleging violation of Articles 14, 16 and 21 of the Constitution of India by opp.party No.2 and seeking a direction to opp.party No.2 to forward this A.C.Rs and commenda¬tion letters etc.to opp.party No.1 at the earliest for considera¬tion for his empanelment as Joint Secretary to Govt. of India, but learned Central administrative Tribunal by order dated 30.9.2005 disposed of the said O.A. with observation that the petition is premature and not maintainable as the same was filed without exhausting the departmental remedies and without having any access to the order of the Govt. of India under which opp.party No.2 had been called upon to nominate the names of the officers for empanelment at the level of Joint Secretary. of India under which opp.party No.2 had been called upon to nominate the names of the officers for empanelment at the level of Joint Secretary. The Tribunal, however, directed the petitioner to file representation before the Cadre Controlling Authority i.e. the Chief Secretary, Orissa disclosing his willingness to be considered for empanel¬ment under the Central Staffing Scheme within a period of 30 days from the date of receipt of this order and also directed the Cadre Controlling Authority that upon such representation he shall dispose of the representation of the petitioner within a period of 45 days from the date of receipt of the representation after giving a personal hearing to the petitioner. Aggrieved, the petitioner has filed the preset writ petition for quashing of the aforesaid order of the Tribunal and for issuing a direction to the opp.party No.2 to forward all required papers including all pending A.C.Rs. to opp.party No.1 and for a direction to opposite party No.1 to consider the petitioner’s case along with other IAS Officers of 1985 batch empanelled as Joint Secretary in 2005 giving due seniority to the petitioner and to ignore the adverse entries as communicated to the petitioner on 04.05.2006. 3. Opp.Party No.2 in its counter affidavit denied the allegations raised by the petitioner and claimed inter alia that the petitioner consistently defaulted to give his A.C.Rs forms after self assessment to his reporting authority, did not inform the G.A. Department about submission of A.C.Rs. forms, did not give the self-assessment for the correct period on many occasions for which the reporting authority was asked to record his remark under Rule 5(2) of AIS (CR) Rules, 1970. It is also alleged that the petitioner did not mention the fact of his leave for some period as a result of which no Remarks Certificate for the period of leave could not be granted expeditiously. According to the opp.party No.2., the A.C.Rs of the petitioner which were availa¬ble were examined with reference to the AIS (CR) Rule, 1970 and appropriate action was taken to forward the copies of the A.C.Rs of the petitioner available in the department to opp.party No.1. The details of the A.C.Rs of the petitioner complete and incom¬plete available was reflected in Annexure-A to the counter. The details of the A.C.Rs of the petitioner complete and incom¬plete available was reflected in Annexure-A to the counter. It is specifically averred in the counter that opp.party No.2 never discriminated the petitioner and never withheld the A.C.Rs with any mala fide intention and so there was never any violation of Articles 14, 16 and 21 of the Constitution by opp.party No.2. The allegations regarding opp.party No.2 taking a hostile view be¬cause of detection of any land scam is also denied specifically. 4. Opp.Party No.1 while supporting the order of the Central Administrative Tribunal and denying the allegations of mala fide and prejudicial attitude of the opp.parties mentions that opp.party No.2 had actually sent to opp.party No.1 either the Confidential Report or No Report Certificate in respect of the petitioner for the periods i.e., 1.4.1993 to 10.8.1993; 11.8.1993 to 31.3.1994; 5.6.1995 to 12.10.1995; 2001-2002 and 8.12.2002 to 31.10.2003, and the same were received by the opp.party No.1. But the confidential reports in respect of the petitioner for the periods 1992-93, 13.10.1995 to 31.4.1996, 2000-2001 and 01.4.2002 to 7.12.2002 were not received. It is also mentioned in the counter that the name of the petitioner was considered for empanelment as Joint Secretary at the Centre along with other officers of his batch, but he was not found suitable for empanelment and that his case has been kept for consideration on review after a period of two years when two more additional A.C.Rs on his performance are received. 5. Mr. Mohapatra, learned counsel for the petitioner stated that the petitioner submitted his A.CRs form with self-assessment regularly, but the opp.party No.2 deliberately omit¬ted to submit the A.C.Rs to the Central Govt. with mala fide intention and even manipulated the A.C.Rs and records to harm the career and seniority of the petitioner, because the petitioner detected a land scam involving many influential and powerful people. He submitted that these facts can be ascertained by calling for the records from the opp.party No.2 and examining the same. 6. Learned counsel appearing for opp.party No.1 simply took the stand that some of the A.C.Rs of the petitioner were sent by opp.party No.2 and those A.C.Rs and other materials relating to performance of the petitioner were considered, but the petitioner was not found suitable for empanelment as Joint Secretary, Govt. of India. 7. 6. Learned counsel appearing for opp.party No.1 simply took the stand that some of the A.C.Rs of the petitioner were sent by opp.party No.2 and those A.C.Rs and other materials relating to performance of the petitioner were considered, but the petitioner was not found suitable for empanelment as Joint Secretary, Govt. of India. 7. Learned State counsel appearing for opp.party No.2 submitted that the petitioner was irregular in submitting his A.C.Rs forms with self-assessment, did not inform the G.A. Department about the submission of such forms and also did not furnish proper information and Leave Certificate etc. for which A.C.Rs for some period were incomplete and sometimes no report had to be recorded. According to the learned counsel for the State, whatever A.C.Rs were available were sent to opp.party No.1 for consideration. He stoutly denied the allegation that opp.party No.2 treated the petitioner with any discrimination or that any A.C.Rs were withheld maliciously. Indicating the details of the A.CRs complete and incomplete of the petitioner available in the department in Annexure-A, he submitted that the opp.party No.2 has no reservation about sending those A.C.Rs to the opp.party No.1 at any time. 8. The petitioner has made allegation that his A.C.Rs were deliberately and maliciously withheld to deprive his empanelment as Joint Secretary to Govt. of India, but from the counter affi¬davits of opp.party Nos. 1 and 2 particularly that of opp.party No.1 one can see that A.C.Rs for some periods were forwarded by opp.party No.2 and were also considered by opp.party No.1. Whether complete and up-to-date A.C.Rs for the entire period were not sent for the latches on the part of the petitioner or on the part of the opp.party No.2., whether opp party No.2 bore a hos¬tile attitude towards the petitioner because of detection of any land scam by the petitioner are factual controversies which can not be efficaciously decided by this Court in exercise of power under Articles 226 and 227 of the Constitution of India. 9. Admittedly the Joint Secretary Empanelment Proceedings for 2005 is already over. So the issue raised by the petitioner has become stale and infructuous and no useful purpose would be served by dissecting and deciding the correctness of the order of Tribunal passed in O.A. No.782 of 2005. 9. Admittedly the Joint Secretary Empanelment Proceedings for 2005 is already over. So the issue raised by the petitioner has become stale and infructuous and no useful purpose would be served by dissecting and deciding the correctness of the order of Tribunal passed in O.A. No.782 of 2005. Be that as it may the petitioner has prayed for a direction to opp.party No.2 to send his A.C.Rs and commendations to opp.party No.1 for consideration in the empanelment proceeding. Mr. Mohapatra, learned counsel for the petitioner submitted that another empanelment proceeding for the Joint Secretary at the Centre is going to be held shortly, where the case of the petitioner can be considered if his com¬plete and up-to-date A.C.Rs are made available to the opp.party No.1. Learned counsel for the State submits that the State has no specific objection for sending the copies of the A.C.Rs. which are available with the Government. We find from the counters that opp.parties 1 and 2 that opp.party No.2 had sent some of the A.C.Rs of the petitioner for consideration in the empanelment proceeding of Joint Secretary to Govt. of India which is indicative of the fact that opp.party No.2 had decided to nominate the petitioner along with other officers of his batch for consideration for empanelment in the cadre of Joint Secretary at the Centre. 10. Under such situation, we dispose of the writ petition with a direction to the opp.party No.2 to send all the A.C.Rs of the petitioner which are available with it to opp.party No.1 within a period of 30 days from the date of receipt of copy of this order for consideration of opp.party No.1 in the next empa¬nelment proceeding. So far as the prayer for direction to oppo¬site party No.1 to ignore the adverse entries in the A.C.Rs. of the petitioner and to give seniority due to the petitioner is concerned, no order can be passed by this Court as consideration of A.C.Rs., empanelment of officers in a particular cadre, decid¬ing their seniority are administrative acts coming within the powers of the concerned Departmental authority. Before closing, we make it clear that we have expressed no opinion on the merit of the allegations and counter allegations of the parties. No costs. I. M. QUDDUSI, J. I agree. Petition disposed of.