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2017 DIGILAW 929 (ORI)

Pitambar Patra v. Registrar General, High Court of Orissa, Cuttack

2017-08-23

D.DASH, S.C.PARIJA

body2017
JUDGMENT S.C. PARIJA, J. - The challenge in this writ petition is to the decision of the Full Court dated 05.11.2006, accepting the recommendation of the Transfer, Posting and Promotion Committee, for promotion of opposite party No.3 and 4 to the Supertime Scale of the Orissa Superior Judicial Service (Senior Branch) and its subsequent decision dated 12.12.2007, extending similar benefits to opposite party Nos. 5 to 9, with a prayer to allow such benefit of promotion to the Supertime Scale the petitioner from the date his junior, i.e. opposite party No.3 was promoted, with all consequential service benefits. 2. The brief facts of the case, as detailed in the writ petition is that the petitioner, who was a member of the Orissa Judicial Service, was promoted to the rank of District Judge in Orissa Superior Judicial Service (Senior Branch) on 27.9.1995 and he joined his promotional post on 11.10.1995. His service in the cadre of the District Judge was confirmed on 09.11.2000 w.e.f. 01.4.1998. While the petitioner was working as the District Judge, he was allowed to officiate in the Selection Grade post in the Orissa Superior Judicial Service ( Senior Branch) w.e.f. 08.5.2004 and was allowed to continue in the said post till he superannuated on 31.12.2007. Subsequently, as the petitioner was about to attain the age of 58 years on 31.12.2005, the Full Court took into consideration the service records of the petitioner and the recommendation of the Review Committee regarding his potential for continued useful service beyond 58 years of age and accordingly resolved that the benefit of extension of service upto 60 years be given to him. In consequence of such decision of the Full Court, the petitioner continued in service till he attained the age of superannuation, i.e. 60 years on 31.12.2007. 3. Opposite party Nos.3 and 4, who were juniors to the petitioner in service, were promoted to the rank of the District Judge in the Orissa Superior Judicial Service (Senior Branch) on 04.11.1996 and 22.11.1996 and they were confirmed in the said cadre w.e.f. 01.7.2000 and 22.11.1997 respectively. 4. While working in the Selection Grade post, the case of the petitioner along with opposite party Nos.3 and 4 and four other officers were taken up for consideration by the Transfer, Posting and Promotion Committee, for promotion to the Supertime Scale of the Orissa Superior Judicial Service (Senior Branch). 4. While working in the Selection Grade post, the case of the petitioner along with opposite party Nos.3 and 4 and four other officers were taken up for consideration by the Transfer, Posting and Promotion Committee, for promotion to the Supertime Scale of the Orissa Superior Judicial Service (Senior Branch). Considering their seniority and the service records, the Committee in its meeting dated 04.11.2006 was of the opinion that Sk. Jan Hossain (who being senior to the petitioner, has not been made a party to the writ petition) and Shri S.K. Pradhan (opposite party No.3) were more suitable for promotion to the Supertime Scale, while ignoring the case of the petitioner. The Committee also found Shri B.K. Nayak (opposite party No.4) to be more suitable for promotion to the said Supertime Scale on the “Next Below Rule” basis. The recommendation of the Committee were accepted by the Full Court in its meeting dated 15.11.2006. Accordingly, opposite party Nos. 3 and 4 were promoted to the Supertime Scale vide Government Notification dated 17.11.2006 and 31.1.2007, w.e.f. 15.11.2006 and 22.01.2007 respectively. Subsequently, the Full Court in its meeting held on 12.12.2007, granted similar promotions to opposite party Nos. 5 to 9 to the Supertime Scale from the said date, in relaxation of Rule 5 of the Orissa Superior Judicial Service Rules and Orissa Judicial Service Rules, 2007 and rejected the representation of the petitioner, as he was not found suitable. 5. Shri A.K. Mishra, learned Senior Counsel for the petitioner submitted that there is no dispute that the provisions of Orissa Superior Judicial Service Rules, 1963 (“1963 Rules” for short) is applicable to the case of the present petitioner. It is submitted that Rule 15 (3) of the 1963 Rules provided for appointment to the Supertime Scale to be made by selection on the basis of merit with due regard to seniority. It is submitted that the petitioner had a clean service record and there was no adverse entries in his CCR except for the entry of ‘Average’ for the year 1990-91, which was communicated to the petitioner and on which he had made a representation, which is still pending consideration. It is submitted that the petitioner had a clean service record and there was no adverse entries in his CCR except for the entry of ‘Average’ for the year 1990-91, which was communicated to the petitioner and on which he had made a representation, which is still pending consideration. It is submitted that as there was no other adverse entries in the CCR of the petitioner to the best of his knowledge and atleast no such adverse entries have ever been communicated to him, the same could not have been the basis for denying him promotion to the Supertime Scale. In this regard, he has relied upon the decisions of the Apex Court in Vijay Kumar v. State of Maharashtra and others, AIR 1988 SC 2060 and Dev Dutt v. Union of India & Ors., 2008 AIR SCW 3486, wherein it has been held that recommunicated CCR cannot be relied upon for the purpose of denial of promotion to a Government servant, when similar benefit is extended to his juniors. 6. It was further submitted that even otherwise, the CCR of the opposite party No.3 for the year 2004, 2005 and 2006 being not available and in comparison, when the petitioner’s CCR entry for the year 2004 had been ‘Average’ and ’Good’ for the other two years, i.e. for the years 2005 and 2006, it stands to no reason as to how the petitioner could be adjudged less meritorious in comparison to the opposite party No.3, who was junior to the petitioner in the cadre. 7. Learned Counsel for the petitioner further submitted that as the Review Committee had considered the service records of the petitioner and found him to be possessing the potential for continued useful service beyond 58 years and the Full Court having accepted the same and allowed the benefit of extension of service of the petitioner upto 60 years vide its Resolution dated 29.9.2005, it is not understood as to how the Transfer, Posting and Promotion Committee in its meeting dated 04.11.2006 could find the petitioner not suitable for promotion to the Super Time Scale, which has been accepted by the Full Court in its meeting dated 15.11.2006. It was submitted that Rule 71 (a) of the Orissa Service Code provides for extension of service of Judicial Officers upto the age of 60 years, who are found to possess the potential for continued useful service, which is on the basis of their past record of service, character roll, quality of judgments and other relevant matters. It was submitted that such benefit of extension of service upto 60 years of age having been granted to the petitioner by the Full Court on 29.9.2005 on consideration of all relevant factors and there being no intervening circumstances, the Full Court was not justified in denying promotion to the petitioner to Supertime Scale barely one year thereafter, in its meeting dated 15.11.2006. Learned Counsel for the petitioner further submitted that as the recommendation of the Transfer, Posting and Promotion Committee has not given any reasons for not finding the petitioner suitable for promotion to Supertime Scale and even the Full Court has accepted such recommendation of the Committee without assigning any reason, the same cannot be sustained in law. It is submitted that all decisions whether administrative or judicial, must be supported by reasons recorded in it and in this regard he has relied upon the decision of the Apex Court in The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Family & others, AIR 2010 SC 1285 . 8. It was accordingly submitted that as the petitioner has been denied promotion to the Supertime Scale without any valid and justifiable reasons, while extending similar benefits to opposite party Nos.3 and 4, he is entitled to be granted the benefit of Supertime Scale with effect from the date the opposite party No.3 was promoted, with all consequential financial benefits. 9. Learned Addl. Government Advocate, appearing for the opposite party Nos. 1 and 2, with reference to the averments made in the counter affidavit submits that seniority is not the only criteria to be considered for promotion to the Supertime Scale. Merit is the determinative factor to be considered for the purpose, with seniority playing a secondary role. It is submitted that the Full Court in its meeting dated 15.11.2006, after considering the merit and seniority of the petitioner vis-a-vis other officers, resolved to promote opposite party Nos. Merit is the determinative factor to be considered for the purpose, with seniority playing a secondary role. It is submitted that the Full Court in its meeting dated 15.11.2006, after considering the merit and seniority of the petitioner vis-a-vis other officers, resolved to promote opposite party Nos. 3 and 4 to the Supertime Scale, as they were found most suitable, as per the recommendation of the Transfer, Posting and Promotion Committee dated 04.11.2006. It is further submitted that similarly, the Full Court in its meeting held on 12.12.2007, resolved to promote opposite party Nos.5 to 9 to the Supertime Scale, as they were found most suitable and the representation of the petitioner claiming such promotion to the Supertime Scale was rejected, as he was not found suitable. Though a feeble attempt has been made to support the impugned decision of the Full Court, learned Addl. Government Advocate has not been able to produce any material to show how the petitioner was found less suitable than opposite party Nos.3 and 4 for promotion to the Supertime Scale. He also does not dispute the factual position that the CCR entries of opposite party No.3 were not available for the year 2004, 2005 and 2006, when the matter was being considered by the Committee or even the Full Court. It is candidly conceded by him that no reasons have been assigned by the Full Court for denying promotion to the petitioner to the Supertime Scale, while extending similar benefits to opposite party Nos.3 and 4. However, he insists that on consideration of all relevant factors, including their respective seniority and merit, the Full Court has taken the decision in its meeting dated 15.11.2006 to promote opposite party Nos. 3 and 4 to the Supertime Scale, as they were found more suitable. 10. Rule 15 (3) of the 1963 Rules provides for promotion to the Supertime Scale by way of selection on the basis of merit with due regard to seniority. In other words, greater emphasis is to be laid on merit and ability with seniority playing a less significant role. 10. Rule 15 (3) of the 1963 Rules provides for promotion to the Supertime Scale by way of selection on the basis of merit with due regard to seniority. In other words, greater emphasis is to be laid on merit and ability with seniority playing a less significant role. Only when merits are roughly equal, seniority will be the determining factor or, if it is not fairly possible to make an assessment inter-se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale, as has been held by the Apex Court in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1920, Union of India v. Mohan Lal Capoor and others, (1973) 2 SCC 836 ; B.V.Sivaiah v. K. Addanki Babu & Ors., AIR 1988 SC 2565 and Bhagwandas Tiwari & Ors. v. Dewas Shajapur Kshetriya Gramin Bank & Ors. (2006) 12 SCC 574 . 11. In the instant case, no material has been produced before us to show that the petitioner was less meritorious than opposite party Nos. 3 and 4. No adverse remark in the CCR of the petitioner or any other relevant material has been placed before us, which can be said to have weighed in the mind of the Transfer, Posting and Promotion Committee, while holding that the petitioner was not suitable for promotion to the Supertime Scale. Therefore it has to be said that no such material was available before the Full Court while accepting the recommendations made by the Committee. 12. It is not disputed that the petitioner was granted extension of service upto 60 years of age on consideration of his service records and on being found to possess the potential for continued useful service beyond the age of 58 years, as per the decision of the Full Court taken in its meeting dated 29.9.2005. The provisions for extension of service has been introduced under Rule 71 (a) of the Orissa Service Code, which reads as under: “71. The provisions for extension of service has been introduced under Rule 71 (a) of the Orissa Service Code, which reads as under: “71. (a) : Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service up to the date of completion of the age of 58 years or retired on completing the age of 55 years in public interest Provided...... (a-1) Notwithstanding anything contained in sub-rule (a) of Rule 71, Judicial Officer belonging to State Judicial Services, who, in the opinion of the High Court of Orissa, have a potential for continued useful service, shall be retained in service up to the age of 60 years. (Note – The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court, constituted and headed by the Chief Justice and the valuation shall be made on the basis of the Officer’s past record of service, Character Roll, quality of judgments and other relevant matters. The High Court should undertake and complete the exercise in case of an officer about to attain the age of 58 years well within time by following the procedure for compulsory retirement under the service rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only, if he is found fit and eligible to continue in service. In case he is not found fit and eligible, he shall be compulsorily retired on his attaining the age of 58 years. This exercise should be undertaken well in advance before an officer attains the age of 58 years.). (b)........... (c)........... 13. In case he is not found fit and eligible, he shall be compulsorily retired on his attaining the age of 58 years. This exercise should be undertaken well in advance before an officer attains the age of 58 years.). (b)........... (c)........... 13. The Apex Court in Ramesh Chandra Acharya v. Registrar, High Court of Orissa and another, 90 (2000) CLT 495 (S.C.), while referring to the Note under Rule 71 (a) of the Orissa Service Code as quoted above, has observed that the benefit of such extension of service will be available to those Judicial Officers who, in the opinion of the High Court, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committee of Judges of the High Court constituted and headed by the Chief Justice of the High Court and the evaluation shall be made on the basis of the Judicial Officers past record of service, character rolls, quality of judgments and other relevant matters, which may include overall assessment with regard to integrity, reputation and utility. 14. In the instant case, the Review Committee in its meeting held on 21.9.2005 considered the service records of the petitioner, who was due to attain the age of 58 years as on 31.12.2005 and found him to possess the potential for continued useful service beyond 58 years of age. Accordingly, the Full Court in its meeting held on 29.9.2005 resolved that the benefit of extension of service upto 60 years of age be given to the petitioner. Barely one year thereafter, when the case of the petitioner came up for consideration for promotion to the Supertime Scale, the Transfer, Posting and Promotion Committee found the petitioner not suitable for promotion to Supertime Scale, while extending such benefit to the opposite party Nos. 3 and 4. 15. No material has been produced before us to show that in the intervening period, the performance of the petitioner has not been satisfactory or had considerably deteriorated, which had weighed in the mind of the Committee to deny promotion to the petitioner and recommend opposite party Nos. 3 and 4 for promotion to Supertime Scale, which has been accepted by the Full Court in its meeting dated 15.11.2006. 16. 3 and 4 for promotion to Supertime Scale, which has been accepted by the Full Court in its meeting dated 15.11.2006. 16. It is appropriate at this juncture to refer to the judgment of the Apex Court in Swami Saran Saksena v. State of U.P. (1980) 1 SCC 12 , where the Hon’ble Court while dealing with compulsory retirement, which was found to be in sharp contradiction to the recent service performance and record has observed as under : “xxx xxx But on the materials before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found to unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant’s work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of the opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.” 17. Coming to the necessity for assigning reasons in support of administrative or judicial orders, it is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. (See – State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794 and State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573 ). 18. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum (See-Raj Kishore Jha v. State of Bihar & Ors, AIR 2003 SC 4664 and Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172 . 19. Similar view has been expressed by the Apex Court in The Secretary & Curator, Victoria Memorial Hall (supra), wherein, the Hon’ble Court while referring to its earlier decisions on the issue has observed as under :- “33. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected.” 20. For the reasons as aforesaid, we are of the considered view that the denial of Supertime Scale to the petitioner was improper, unjustified and arbitrary. We accordingly allow the writ petition and direct the State-opposite party No.2 to grant Supertime Scale to the petitioner with effect from the date his junior-opposite party No.3 was granted such benefit, with all consequential benefits as per rules regulating his service. 21. The writ petition is accordingly allowed. No cost. D. DASH, I agree. Petition allowed.