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2011 DIGILAW 287 (ORI)

Nilanchala Dash v. State of Orissa

2011-05-11

D.K.SAHU

body2011
ORDER Dr. D.K. SAHU, MEMBER (JUDICIAL) — The applicant has been serving as a level-II officer in the Orissa Elementary Education Service. In accordance with the gradation/seniority list he has been placed at Sl. No.7 of that cadre. The applicant submits that vide impugned notification dated 28.12.2009 at Annexure-3, respondent No.3 who is junior to him, has been given promotion to level-I post of the service, whereas he has been superseded. The applicant has thus filed this application to quash the order of promotion of respondent No.3 so also to issue direction to the official respondents to consider his case for promotion to level-I service. 2.The official respondents have filed a written counter, wherein it is submitted that the DPC was held on 15.12.2009 to consider the eligibility of the officers of level-II for their promotion to the cadre of level-I. The CCRs of the eligible officers have been scrutinized and after careful consideration nine eligible officers on the basis of merit cum seniority have been promoted. They have annexed the minutes of the DPC proceeding as at Annexure-A. 3.Heard learned counsel for both sides. Perused the pleadings and the documents annexed thereto. 4.We have called for the relevant file of the department and gone through the minutes of the DPC which has been enclosed at Annexure-A so also enclosed papers containing their grading in the CCRs of the considered level-II officers. 5.Orissa Elementary Education Service consists of five levels i.e. (v) to (i). The methods of recruitment and condition of service have been regulated by Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers) Rule, 1997 (in short Rule). Sub-Rule-4 of Rule-11 relates to eligibility for promotion to level-I. It provides that in order to be eligible for promotion to the post of level-I, a candidate must have served for a continuous period of three years in the post belonging to level-II. Secondly he must have possessed educational qualification of B.A/B.Sc/B.Com. with bachelor degree in education. 6.Admittedly the applicant has eligible educational qualification and experience in level-II cadre for promotion to level-I of the service. The applicant is placed at Sl. No.7 of the seniority lit whereas, respondent No.3 has been placed below him. 7.The impugned order of promotion at Annexure-3 reveals that nine officers of level-II have been promoted to level-I of the service. 6.Admittedly the applicant has eligible educational qualification and experience in level-II cadre for promotion to level-I of the service. The applicant is placed at Sl. No.7 of the seniority lit whereas, respondent No.3 has been placed below him. 7.The impugned order of promotion at Annexure-3 reveals that nine officers of level-II have been promoted to level-I of the service. The file reveals that 16 officers including the applicant have been considered for promotion. 8.The minutes of the proceeding does not contain if the provisions of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled caste and Scheduled Tribe), Act, 1975 has its application to the promotions in question and if so to which roster points the posts/vacancies do relate. Incumbents including respondent No.3 placed below the applicant in their seniority have been promoted whereas the applicant has been superseded. 9.As regards his supersession, the DPC has stated as follows:- “It was also found that in case of the Officers at Sl. No. 7 and 9, CCRs for the year 2007-08 are average and CCRs for the year 2008-09 are not available. As their CCRs for just preceding year i.e. 2007-08 are average, the Committee did not find these officers suitable for promotion.” Thus the applicant has been superseded on the sole ground that he has been graded/rated as average in the CCR entry for the year 2007-08. 10.The Orissa Civil Service (Criteria for Promotion) Rules, 1962 is squarely applicable to the promotion in question. Rule-3 thereof manifests that the provisions of that Rule has over riding effect on other Recruitment Rules. Clause-(a) & (b) of Rule-3 provides that the promotion is to be made by selection on the basis of merit and suitability with due regard to seniority. It is explicit from first ‘proviso’ to clause-(b) that a junior officer of exceptional merit and suitability may be assigned a place of higher than his senior. Thus seniority shall also be given due regard. It is explicit from first ‘proviso’ to clause-(b) that a junior officer of exceptional merit and suitability may be assigned a place of higher than his senior. Thus seniority shall also be given due regard. Clause-(c) thereof reads as follows:- “(c) In order to judge the suitability of an officer for promotion, the Orissa Public Service Commission, the Departmental Promotion Committee, the Selection Commission or Selection Board, as the case may be, shall scrutinize preceding five available annual Confidential Character Rolls (Performance Appraisal Reports) (PARs) and other documents, if any, having a bearing on the performance and conduct of all eligible officers, unless for reasons to be recorded it is considered necessary to refer to any earlier record to adjudge an officer’s suitability: Provided that available Confidential Character Rolls (Performance Appraisal Reports (PARs) (CCRs/(PARs) taken into consideration for, promotion as above shall include C.C.Rs/) P.A.Rs) covering at least a period of three years in preceding five years.”) It is manifest that the DPC shall scrutinize available CCRs of preceding five years and at least three years available CCRs of the preceding five years. Perusal of DPC proceeding and the gradation of the candidates enclosed therewith reveals that for the year 2003-04 the applicant has been rated as ‘good’, for the year 2004-05 as ‘very good’, for the year 2005-06 as ‘very good’, for the year 2006-07 as ‘very good’, for the year 2007-08 as ‘average’, whereas the CCR for the year 2008-09 was not available. 11.At the sake of repetition the sole ground for suppression of applicant is that for the year 2007-08 he has been rated as “average”. 12.The DPC meeting was held in December, 2009. As per the criteria for promotion contained in the said rule, referred to above, the DPC was to consider the CCRs for preceding five years i.e. 2008-09, 2007-08, 2006-07, 2005-06 and 2004-05. The entries for the year 2008-09 of the applicant was not available. So there were four available CCRs of the preceding five years. Out of those four years the applicant has been consistently graded/rated as “very good” in all the years 2004-05, 2005-06 and 2006-07. But in the year 2007-08 he was rated as “average” that means his rating/grading has been abruptly down degraded. Neither the criteria for promotion rules provide nor the DPC has adopted any ‘bench mark’ procedure. Out of those four years the applicant has been consistently graded/rated as “very good” in all the years 2004-05, 2005-06 and 2006-07. But in the year 2007-08 he was rated as “average” that means his rating/grading has been abruptly down degraded. Neither the criteria for promotion rules provide nor the DPC has adopted any ‘bench mark’ procedure. To make it clear the DPC has not given marks for rating of each year of preceding five or three years, accordingly the total marks obtained for these years, out of which what should be the minimum mark i.e. “bench” to be secured by a candidate in order to make him suitable for promotion. The Committee has not stated that there is any benchmark for promotion. They are required to consider the available CCRs of preceding five years. But they appear to have considered the rating of one year i.e. 2007-08 and ignored those of the previous three years to supersede the applicant. This is not in consonance with Clause-(c) of Rule-3 of Criteria for Promotion Rules, 1992. 13.As mentioned above, the applicant has been rated/graded as “very good” consistently in three years but in the 4th years as “average”. The abrupt down grading amounts to an adverse entry. Reference has been made to the decision of the Apex Court in the case of U.P. Jal Nigam -vrs- Prabhat Charan Jain, reported in 1996 SCC (L&S) 519. The same i.e. the adverse entry should have not been considered without communicating that to the applicant and giving him a chance to have his say on such adverse entry. (Referred to the decision of State of U.P. - vrs- Yamuna Shankar Misra, reported in 1997 SCC (L&S) 903). But without doing so respondents have superseded him on the sole ground of “average” rating for the year 2007-08 at the same time they have ignored “very good” rating in the preceding three years. It is found from the enclosed CCRs rating that the incumbent at Sl. No.5 has been rated as “average” for the year 2006-07 and some part of the year 2005-06, but the DPC converted those to “very good”. It amounts to change of CCR entries. No rule has been placed by the learned state counsel if the DPC is authorized to change any entry in the CCRs. Likewise the incumbent at Sl. No.5 has been rated as “average” for the year 2006-07 and some part of the year 2005-06, but the DPC converted those to “very good”. It amounts to change of CCR entries. No rule has been placed by the learned state counsel if the DPC is authorized to change any entry in the CCRs. Likewise the incumbent at Sl. No.6 has been promoted though out of five preceding years the rating in C.C.R. for two years could be available i.e. without available rating of at least three years he has been selected for promotion. 14.Thus the applicant’s preceding rating as ‘very good’ have not been considered. Whereas the DPC acted on the un-communicated adverse entry. If that entry i.e. adverse rating goes, the applicant has been rated as a “very good” in three available CCRs of the preceding five years. 15.After careful consideration, it is found that the ground of supersession of the applicant is an arbitrary action of the DPC and the authority. True it is the Tribunal should not ordinarily interfere with the recommendation or finding of the DPC unless it is arbitrary and mala fide. As stated above the recommendation of the DPC is an arbitrary action. Consequently the supersession of the applicant is not sustainable. We also find that other persons in addition to respondent No.3 junior to the applicant have been promoted. The superstition of the applicant being not permissible the impugned order of promotion at Annexure-3 to that extent is not sustainable. 16.Respondents are therefore directed to convene a review DPC within one month from communication of this order to consider the suitability of the applicant in accordance with the material placed before the DPC held on 5.12.2009 without taking into consideration the un-communicated adverse entry as held above. 17.If the applicant would be found suitable he be given promotion the date from which respondent No.3 has been promoted and be placed above respondent No.3 in the seniority list, with all consequential service and other benefits. The O.A. is accordingly disposed of. No order as to cost. O.A. disposed of.