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2017 DIGILAW 357 (ORI)

State of Odisha v. Ambuja Chandra Kesh

2017-04-05

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, having been filed by the State of Odisha assailing the order dtd.14.12.2015 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1163(C) of 2013 whereby and where under the learned Tribunal has directed the authorities to promote the petitioner to the post of Asst. Conservator of Forest, Odisha Forest Service, Group-A (JB) with effect from the date when his junior got promotion notionally and on that basis his pension be revised and the differential pensionary benefits be extended in his favour. 2. The brief facts of the case of the appellant (opposite party herein) is that he was appointed as Forest Ranger on 09.03.1981 and retired from Government service on attaining the age of superannuation with effect from 31.12.2012. As per gradation list his name finds place at Sl. No.37 whereas the name of other candidate who was respondent No.3 before the Tribunal, being junior to him, placed at Sl. No.38, but he has been granted promotion ignoring his case, hence he has preferred an original application for grant of promotion with effect from the date when his immediate junior has been granted promotion, the Tribunal after taking into consideration the averment of the applicant/opposite party No.1, has allowed the original application, directed the State authorities to grant him promotion from the date when the other juniors have been granted promotion to such post. 3. The State of Odisha, being aggrieved with the order passed by the Tribunal is before this court by way of this writ petition assailing the same on the ground that the Tribunal while allowing the original application has not taken into consideration the fact that the post of Asst. Conservator of Forest is a selection post, to be governed by the Odisha Civil Services (Criteria for Promotion) Rules, 1992 wherein the provision has been made under Rule 3(B) to consider the candidature of one or the other employee who are to be promoted to the post of Asst. Conservator of Forest is a selection post, to be governed by the Odisha Civil Services (Criteria for Promotion) Rules, 1992 wherein the provision has been made under Rule 3(B) to consider the candidature of one or the other employee who are to be promoted to the post of Asst. Conservator of Forest which provides that the promotion is to be considered on the basis of “merit–cum-suitability in all respect with due regard to seniority” as also the provision of Rule 3(C) contains a provision that the departmental promotion committee or the selection committee or the selection board or the Orissa Public Service Commission, as the case may be, shall scrutinize preceding five available annual Confidential Character Rolls (C.C.R.) (Performance Appraisal Reports) and other documents, if any, having a bearing on the performance and conduct of all eligible officers, unless for reasons to be recoded, it is considered necessary to refer to any earlier record to adjudge an officer’s suitability. According to the State the case of the petitioner has been considered by the duly constituted selection committee on the basis of the provision as contained in Rule 3(B) as well as Rule 3(C) of Rules 1992 but on comparative assessment of candidature of other candidates who have been selected, the candidature of the applicant has found not up to mark in comparison to those candidates who have been selected and promoted, as such the Tribunal ought to have considered this aspect of the matter, but the Tribunal, merely on the basis of the fact that there is no adverse entry in the C.C.R. of the applicant for the last preceding 5 years, has directed him fit to be promoted to the post of Asst. Conservator of Forest, which cannot be said to be justified direction, reason being that when the post is a selection post, the comparative assessment of all the candidates who are to be promoted to the higher post, is to be seen and the most suitable, subject to availability of vacancy, would be granted promotion to the higher post. 4. Conservator of Forest, which cannot be said to be justified direction, reason being that when the post is a selection post, the comparative assessment of all the candidates who are to be promoted to the higher post, is to be seen and the most suitable, subject to availability of vacancy, would be granted promotion to the higher post. 4. While on the other hand, learned counsel representing opposite party no.1 has vehemently opposed the argument advanced on behalf of State of Odisha by submitting that the Tribunal has not committed any error in passing the order for the reason that the petitioner has been victimized right from the beginning and on the garb of pendency of departmental proceeding his promotion has been kept in sealed cover, but when the sealed cover was opened he was not found to be suitable, this shows ulterior motive of the authority concerned in not granting him promotion. The tribunal has considered this aspect of the matter and after taking into consideration the fact that the petitioner has already been retired with effect from 31.12.2012, passed the order of notional promotion so that he may get the benefit in the pensionariy claim. He further submits that the departmental promotion committee has not assigned any reason while rejecting the claim of the applicant, in that view of the matter it has been submitted that there is no infirmity in the order and the same needs no interference. 5. We have heard the learned counsels for the parties and perused the document available on record. This court on earlier occasion, after hearing the rival contention of the parties, has directed the learned Additional Government Advocate representing the state of Orissa to produce the minutes of departmental promotion committee showing the comparative assessment of one or the other candidate, in pursuance thereto the original record of the departmental promotion committee containing the list of candidates who were under the consideration zone including the applicant, has been placed before this court. The whole contention raised by the learned counsel representing the State of Odisha is that the Tribunal has not appreciated the provision as contained in Rule 3(B) while passing the order, rather the tribunal has merely gone into the provision of Rule 3(C) of Rules 1992. The whole contention raised by the learned counsel representing the State of Odisha is that the Tribunal has not appreciated the provision as contained in Rule 3(B) while passing the order, rather the tribunal has merely gone into the provision of Rule 3(C) of Rules 1992. We have examined the relevant rules of the Rules, 1992 and from its perusal it is evident that the provision of Rule 3(B) of the Rules, 1992 speaks that the promotion is to be based upon merit cum suitability in all respect with due regards to seniority. In pursuance to the said provision the name of the candidates have been prepared for consideration of their candidature for promotion to the post of Asst. Conservator of Forest, which includes the name of the application. The other criteria for promotion has been given in the provision as contained in Rule 3(C) of the Rules, 1992 which provides provision to consider the candidature of one or the other officers eligible to be promoted to the post of Asst. Conservator of Forest which provides the power upon the committee to scrutinize preceding five available annual confidential character rolls and other documents, if any, for better appreciation the provision of Rule 3(C) of the Rules, 1992 is being reflected herein below:- “3(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 the 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. NOTE-I- The expression “other documents” means papers of whatsoever nature having bearing on the performance and conduct of eligible officers like C.B.I. or Vigilance reports, papers relating to departmental action and other confidential reports having nexus with an officer’s performances which might have been prepared after giving an opportunity to an officer of being heard and not reflected in his C.C.Rs/P.A.Rs. or service records. or service records. NOTE-II- The expression ‘preceding five years’ means the five years preceding the year which the officer’s performance is in accordance with the relevant Recruitment Rules, first evaluated.” It is evident from Rule 3(B) and Rule 3(C) of Rules, 1992 that the consideration is to be made on the basis of merit-cum-suitability with due regards to seniority, meaning thereby the post is purely a selection post and it is to be filled up by way of promotion by assessment of merit with suitability but with due regard to seniority. Learned counsel appearing for the applicant has not raised any question regarding non-consideration of the candidature of the applicant on the ground of seniority and that is also not evident from the record, reason being that the case of the applicant had been considered by the departmental promotion committee taking into consideration his seniority since he being at Sl. No. 37 in the seniority list. 6. So far as consideration of merit-cum-suitability, the Tribunal has made an observation that there is no adverse entry in the confidential character roll of the applicant and this led the Tribunal to give the finding regarding entitlement of applicant to be promoted to the post of Asst. Conservator of Forest. 7. We have examined this finding on the basis of provision as contained in Rule 3(B) and 3(C) and on its critical appreciation, we have found that it is the post which is to be filled up by way of merit-cum-suitability test, the post being a selection post and it does not contain any reference regarding adverse entry. The provision of Rule 3(C) clearly stipulates that the promotion is to be given on the basis of critical scrutinization of the performance of one or the other Forest Range Officers to assess the respective merit-cum-suitability of the candidates. We have perused the original record containing the relative assessment of one or the other candidates who have been promoted, 16 in numbers, and have found that all the candidates have better service performance in comparison to that of the applicant. It is not in dispute that the performance of the applicant for the period form 2006-07 was outstanding and from 25.6.2008 to 21.09.2008 it was good, but his performance for the year 2007-08, 22.09.2008 to 31.03.2009, 2009-2010 and 2010-2011 was average. It is not in dispute that the performance of the applicant for the period form 2006-07 was outstanding and from 25.6.2008 to 21.09.2008 it was good, but his performance for the year 2007-08, 22.09.2008 to 31.03.2009, 2009-2010 and 2010-2011 was average. But what we gathered from the original record that the performance of the other candidates who have been promoted is much better than the applicant. For better appreciation the names of some candidates are being given in tabular format below:- Name of the Forest Ranger 2006-07 2007-08 2008-09 2009-10 2010-11 Remarks Rajkishore Muduli Good Very good Good Good Good Akshaya Kumar Ray 1.8.08 to 31.3.09 very good Good Very good Adwaita Ch. Rout Very good Very good Outstanding Outstanding Outstanding Ambuja Chandra Kesh (applicant/opposite party no.1) Outstanding 1.4.07 to 20.3.08 average 25.6.08 to 21.9.08 good 22.9.08 to 31.3.09 average Average Average Arun Kumar Patra 1.4.06 to 26.7.06 no comment 5.8.06 to 31.3.07 outstanding Outstanding Outstanding Outstanding 1.4.10 to 5.7.10 good 6.7.10 to 31.3.11 very good P.P. Rao Subudhi Outstanding Very good 11.8.08 to 31.3.09 very good Very good Very good Debendranath Mohanty Average 18.1.08 to 31.3.08 no comment Very good Narayan Sahu Good 26.10.07 to 11.1.08 no comment 11.1.08 to 31.3.08 good 1.4.08 to 11.8.08 good 2.8.10 to 31.3.11 very good Deepak Kr. Mallick Outstanding 7.1.08 to 31.3.08 no comment 1.4.08 to 7.6.08 no comment 10.7.08 to 21.9.08 average not communicated 4.9.09 to 31.3.10 very good Very good Sayed Haniff Good Good Good 26.8.09 to 31.3.10 very good Very good Kishor Ch. Guru Good Very good Very good Very good 1.4.10 to 28.2.11 very good Trinath Patnaik 1.4.06 to 7.6.06 outstanding 7.6.06 to 31.3.07 very good 1.4.07 to 23.10.07 outstanding 24.10.07 to 31.3.08 very good Very good Outstanding Narendra Kumar Nayak Very good Very good 25.7.05 to 21.3.06 good Sayed Narul Amin Good Good 1.4.08 to 21.9.08 good Ashok Kr. Das Very good 1.4.07 to 10.7.07 good 23.7.07 to 31.3.08 outstanding 1.4.08 to 21.9.08 very good 1.4.09 to 23.11.09 outstanding Good Santosh Kr. Mohapatra Very good 1.4.08 to 21.9.08 very good 22.9.08 to 31.3.09 outstanding 15.7.10 to 31.3.11 very good It is necessary to mention here that as per normal procedure in case of “no comment” regarding assessment of particular employee, for particular year, the same is to be treated as good. Mohapatra Very good 1.4.08 to 21.9.08 very good 22.9.08 to 31.3.09 outstanding 15.7.10 to 31.3.11 very good It is necessary to mention here that as per normal procedure in case of “no comment” regarding assessment of particular employee, for particular year, the same is to be treated as good. It is evident from the comparative assessment of the performance appraisal of one or the other candidate who have been promoted along with the applicant, it is evident that the other candidates have found to be more meritorious and suitable than the applicant and as such the departmental promotion committee has not found the applicant fit to be promoted to the post of Asst. Conservator of Forest. Moreover, it has been stated at bar that the applicant has been inflicted with the punishment of censure also. In that view of the matter, this court cannot question the decision of the departmental promotion committee sitting under Article 226 of the Constitution of India, since it is settled that the interference required by the High Courts sitting under Article 227, so far it relates to the decision of the departmental promotion committee is concerned, it is only on the decision making process and not on the decision, but we have gathered from the record that there is no infirmity in the decision making process. 8. So far as the observation made by the Tribunal that since there was no adverse entry against the applicant, as such he is to be promoted, we are not in agreement with the said finding of the tribunal, reason being that the post is selective, as would be evident from the provision of Rule 3(B) read with Rule 3(C) of the Rules, 1992 and as such it cannot be said to be based only on the adverse entry reflected in the service record. 9. We, after taking into consideration the factual aspect as well as the settled proposition of law, are not in agreement with the finding of the tribunal, in the result the order of Tribunal is not sustainable in the eye of law and as such the same is set aside. In the result the writ petition stands allowed.