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2015 DIGILAW 59 (ORI)

Shradha Kar Behera v. State of Orissa

2015-01-29

B.R.SARANGI

body2015
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner, who is working as Junior Engineer (Civil) under the Orissa Lift Irrigation Corporation Ltd. has filed this application seeking to quash the order of promotion under Annexures-3 and 4 dated 15.05.2010. The short fact involved in this case is that the petitioner joined as a Junior Engineer, Civil (Diploma Holder) under opposite party No. 2-Orissa Lift Irrigation Corporation Ltd. on 09.02.1984 under S.C. category and has passed all departmental examination conducted by the authority. Accordingly, he was placed at serial No. 69 in the common gradation list of Junior Engineers prepared by the Corporation as on 30.11.2002 whereas opposite party Nos. 3 to 10 were placed at serial Nos. 70, 72, 77, 79, 80, 82, 84 and 85 respectively. As per the decision of the Corporation as approved by the Government, 27 post of Assistant Engineers (Civil) in the Corporation were sought to be filled up through promotion from the cadre of Junior Engineers (Civil) and accordingly a list of senior most Junior Engineers was forwarded to the Government by the Corporation in its letter dated 11.03.2010 for consideration by the Departmental Promotion Committee at the Government level. The petitioner has figured at serial No. 27 of the said list whereas opposite party Nos. 3 to 10 figured at serial Nos. 28, 30, 33, 34, 35, 37, 39 and 40 respectively of the said list. Pursuant to letter dated 13.04.2010, the Corporation furnished to the State Government Bio-data along with information on Departmental proceeding against those 81 senior most Junior Engineers as required by the State Government wherein it was indicated that no departmental inquiry was pending against the petitioner. Therefore, the petitioner is entitled to get promotion from Junior Engineer to Assistant Engineer. Non-extension of the same has given rise to the present application. 2. Mr. G.K. Mishra, learned counsel for the petitioner vehemently urged that since the petitioner is well within the zone of consideration for promotion and vacancy are/were available, instead of promoting him the said benefit has been extended to his juniors. 3. Mr. B.K. Sharma, learned counsel for the opposite party-Corporation states that the promotion has been given on the basis of merit and suitability of the officers in all respect with due regard to the seniority. 3. Mr. B.K. Sharma, learned counsel for the opposite party-Corporation states that the promotion has been given on the basis of merit and suitability of the officers in all respect with due regard to the seniority. Since there is adverse remark in the C.C.R. of the petitioner pertaining to the period from 16.06.2007 to 31.03.2008, which was placed before the departmental promotion committee and on consideration of the same, the petitioner has not been given promotion. 4. On the basis of the above facts pleaded and after hearing learned counsel for the parties and going through the records, it appears that the petitioner has been denied the promotion due to adverse remarks in the CCR for the year 2007-08 which was admitted and communicated on 10.05.2010. Therefore, it is to be considered whether the opposite party-authorities are justified in their action in not considering the case of the petitioner for promotion to the post of Asst. Engineer (Civil) on the basis of the adverse entry made in the C.C.R. for the year 2007-08 communicated on 10.05.2010. 5. The object of maintenance of Confidential Character Roll is to secure continuance record of the efficiency, integrity, performance and general conduct of an employee. Assessment of performance and conduct of an employee has made and recorded by his superiors authority in his character roll serve as data for judging his comparative merits when question arises: "1) for his confirmation in service; 2) for his crossing of E.B.; 3) for his promotion to the higher post or grade; 4) for his continuance in service beyond service age/completion of service years of service." The system of confidential character roll has two principal object. The first and foremost object is to improve the performance of the subordinate in his work. The second one is to assess the potentialities and provide his appropriate feed back and guidance for creating his deficiency and improve his standard, performance and conduct. The confidential character roll is not meant to be fault finding tools. Its objective is to develop an employee, so that he realizes his true potential. 6. The petitioner being an employee of the Corporation, on query being made by this Court with regard to the applicability of the Govt. Rules, Mr. The confidential character roll is not meant to be fault finding tools. Its objective is to develop an employee, so that he realizes his true potential. 6. The petitioner being an employee of the Corporation, on query being made by this Court with regard to the applicability of the Govt. Rules, Mr. B.K. Sharma, learned counsel for the opposite party states that in absence of any rules and regulations governing the field, the State Government rules are applicable to the employees of the Corporation. 7. Admittedly, no guidelines or rules have been framed by the Corporation with regard to maintenance of CCR of its employees. Therefore, in absence of any rules and guidelines framed by the Corporation with regard to maintenance of CCR, the guidelines formulated by the State Government are applicable to the employees of the Corporation. 8. This being the position. It is appropriate to go through Book Circular No. 29 issued by the Government of Orissa in Home (Reforms) Department vide Memo No. 142 (51)-Reforms dated 19.02.1953 addressed to the all Departments of Government and all Heads of Departments. Clause-(b) reads as follows: "(b) There should be as little delay as possible in conveying the adverse remarks to the officers concerned. Such remarks should be communicated to the officers before the end of December of the year in which they are recorded in the Character Rolls and the officers conveying these remarks should intimate the Home Department that he has done so in the month of January of the following year." 9. In view of the aforesaid provision, the adverse remarks should be communicated to the employee before the end of December of the year in which they are recorded in the Character Roll. Similarly, Book Circular No. 46 has been issued by Govt. of Orissa in General Administration Department (S.E.) Department vide Memo No. 741-PRO-11/81 (SE) dated 5.2.1982 to all Departments of Government, all Heads of Departments and all Collectors evolving the guidelines on the subject - Confidential Character Rolls of non-government employees of the Government, procedure for their record, maintenance, communication of adverse remarks and disposal of representations. Clause-(v) therefore deals with the date lines or submission of C.C.Rs., which is as follows:-- "(v) Date lines or submission of C.C.Rs.--The reporting authority shall initiate the C.C.R. immediately after 31st March and submit it in duplicate to the countersigned authority by 30th April. Clause-(v) therefore deals with the date lines or submission of C.C.Rs., which is as follows:-- "(v) Date lines or submission of C.C.Rs.--The reporting authority shall initiate the C.C.R. immediately after 31st March and submit it in duplicate to the countersigned authority by 30th April. The countersigning authority will record his own assessment and forward it by 15th May, to the accepting authority. The accepting authority will record his assessment and forward the C.C. Rs. to the appointing authority by 31st May. When the C.C. Rs are written in the midst of the report period as a result of transfer, it is expected that the C.C. Rs. will reach the office of the appointing authority within two months from the date of transfer." 10. Clause-(xiv) deals with communication of adverse remarks, as follows:-- "(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 the maintenance of C.Rs. 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 31st December immediately following the report period." 11. Clause-(xvii) deals with consultation with the author of adverse remarks. The same reads as follows:-- "(xvii) Consultation with the author of adverse remarks - The authority competent to dispose of representations may consult the officer, who recorded the adverse comments and ask him to substantiate his remarks, but he is not expected to wait indefinitely for his opinion. Only a month need be allowed. When substantiation reports are called for from an officer, copies of the C.Rs. in question and the representation will be forwarded to him." 12. The above mentioned provisions of the Book Circular No. 49 makes it clear that the respective officer has to initiate the CCR by immediately after 31st March and submit it in duplicate to the countersigning authority by 30th April. The countersigning authority will record his own assessment and forward it by 15th May to the accepting authority. If any adverse remarks is there then the same has to be communicated before 31st December immediately following the report period so that the employee can make representation to the competent authority, which should be considered in accordance with law. 13. The countersigning authority will record his own assessment and forward it by 15th May to the accepting authority. If any adverse remarks is there then the same has to be communicated before 31st December immediately following the report period so that the employee can make representation to the competent authority, which should be considered in accordance with law. 13. This is the procedure to be followed for maintenance of CCR. As it appears, the same has not been complied with so far as it relates to the CCR of the petitioner. Admittedly, the adverse entries in the CCR for the year 2007-08 has been communicated to the petitioner only on 11.05.2010. 14. In Gurdial Singh Fijji v. State of Punjab and others, AIR 1979 SC 1622 , the apex Court held as follows: "17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. ....................." 15. Similar view has also been taken in Union of India and others v. E.G. Nambudiri, AIR 1991 SC 1216 taking into account the ratio decided in Gurdial Singh Fijji case (supra). 16. Considering the above guidelines as well as the law laid down by the apex Court and applying the same to the present context, it appears that the adverse remarks of the year 2007-08 having been communicated to the petitioner only on 11.05.2010 just five days before the order of promotion was passed in Annexures-3 and 4 dated 15.05.2010, the authority could not have acted upon on such un-communicated adverse remarks and deprived the petitioner of getting the benefit of promotion. Therefore, this Court remits the matter back to opposite party No. 2 to reconsider the case of the petitioner for promotion to the post of Asst. Engineer (Civil) from the date his juniors have been promoted. It is further directed that the authority will not act upon the un-communicated CCR for such purpose and extend all the consequential service benefits as due admissible to the petitioner in conformity with the provisions of law within a period of three months from the date of receipt of a copy of the judgment, if the petitioner is otherwise found suitable for promotion. With the above observation and direction, the writ petition is disposed of. No order as to costs.