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2020 DIGILAW 8 (ORI)

Ajit Narayan Mohapatra v. Union Of India

2020-01-07

BISWANATH RATH

body2020
JUDGMENT Biswanath Rath, J. - In the instant writ petition, the petitioner has prayed inter alia for the following reliefs: "It is, therefore, prayed that this Hon'ble Court may graciously be pleased to :- a) admit the writ petition. b) call for the records. c) issue rule Nisi calling upon the opposite parties as to why the letter dtd.14.2.2006 under Annexure7 shall not be quashed and the petitioner shall not be promoted to the post of A.D.I.G. of C.I.S.F., w.e.f. the date when his Junior in the cadre of Sr. Commandant have been given promotion to the post of A.D.I.G. if required by holding a review DPC and to declare the preparation of the extended panel as unlawful and invalid as the said panel lost its identity on the end of the calendar year i.e., 31st December, 2005. The scale of pay of the petitioner be fixed in the post of Additional DIG, w.e.f 1.2.2006 and the financial benefit be provided to the petitioner along with the consequential financial benefit till date of superannuation and other post retirement benefits. d) if the opposite parties do not show cause or show insufficient cause, issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions in quashing the letter dtd.14.2.2006 under Annexure-7 and direct the opp. parties to give promotion to the petitioner to the post of A.D.I.G. of C.I.S.F., if required by holding a review D.P.C. from the date when his Junior in the cadre of Sr. Commandant have been given promotion to the post of A.D.I.G. and to declare the preparation of extended panel as unlawful and invalid as the same has lost its identity on the end of the calendar year i.e. 31st December, 2005. The scale of pay of the petitioner be fixed in the post of Additional DIG, w.e.f. 1.2.2006 and the financial benefit be provided to the petitioner along with the consequential financial benefit till date of superannuation and other post retirement benefits. And pass such other order(s) which will be deemed fit and proper for the ends of complete justice. And for this act of kindness, the petitioners as in duty bound shall ever pray." 2. Heard Mr.U.K. Samal, learned counsel for the petitioner and Mr.Gyanalok Mohanty, learned Central Government Counsel for the opposite party nos.1 to 4. 3. And pass such other order(s) which will be deemed fit and proper for the ends of complete justice. And for this act of kindness, the petitioners as in duty bound shall ever pray." 2. Heard Mr.U.K. Samal, learned counsel for the petitioner and Mr.Gyanalok Mohanty, learned Central Government Counsel for the opposite party nos.1 to 4. 3. Writ petition and the prayer based therein raises a question as to if rejection of the case of the petitioner for promotion to the post of Additional Deputy Inspector General on the basis of un-communicated C.C.R. permissible in the eye of law? Referring to the prayer after two stages of amendment being allowed by this Court, Sri Samal, learned counsel appearing for the petitioner further referring to the C.C.R. for the year 2002-03 marked as "Good" having not been communicated to the petitioner contended that non-communication of C.C.R. for a particular year could not have an adverse effect in the promotion of the petitioner to the post of Additional Deputy Inspector General (A.D.I.G.), Central Industrial Security Force. It is taking this Court to the factual aspect involving herein Sri Samal, learned counsel for the petitioner submitted that even though the petitioner has been promoted to the post of A.D.I.G. on 2.4.2007, contended that had the non-communicated adverse entry for the year 2002-2003 been ignored, the petitioner would have been promoted at the minimum from 01.02.2006, i.e. since when his immediate junior Mr.Ved Prakash was promoted. Referring to the decisions of the Hon'ble Apex Court in the case of Dev Dutt Vrs. Union of India and others, (2008) 8 SCC 725 , which was also being considered in the case of Anil Kumar Vrs. Union of India and others, (2019) 4 SCC 276 , referring to paragraphs-18 and 20 therein. Sri Samal, learned counsel for the petitioner contended that the decisions indicated hereinabove have direct application to the case of the petitioner and as such, the petitioner deserves reliefs sought for. 4. Union of India and others, (2019) 4 SCC 276 , referring to paragraphs-18 and 20 therein. Sri Samal, learned counsel for the petitioner contended that the decisions indicated hereinabove have direct application to the case of the petitioner and as such, the petitioner deserves reliefs sought for. 4. Mr.Mohanty, learned Central Government Counsel appearing for the opposite party nos.1 to 4 on the other hand taking this Court to the consideration of the C.C.R. of the petitioner for five years, i.e. 1999 to 2004 more particularly for improvement in the rating of C.C.R. involving the petitioner for the year 2003-04 contended that non-communication of C.C.R. for the year 2002-03 has in fact no effect in the matter of consideration of the case of the petitioner for the post of A.D.I.G., CISF in the year 2002. Taking this Court to the counter submissions, learned Central Government Counsel also contended that there has been no infirmity in the decision making process thereby requiring interference of this Court. It is further submitted that the judgment cited at Bar has no applicability to the case of the petitioner at hand. Mr. Mohanty, learned Central Government Counsel rather relied on a decision of the Hon'ble Apex Court in the case of Union of India and another Vrs. Major Bahadur Singh, (2006) 1 SCC 368 . 5. Considering the rival contentions of the parties and taking into account the questions involved herein, this Court finds decision involving Dev Dutt (supra) is considering a case of similar nature though involving promotion in the Border Roads Engineering Service. This Court further finds in paragraphs-9, 10 and 33 of the judgment of the Hon'ble Apex Court in the case of Dev Dutt (supra), wherein the Hon'ble Apex Court has observed as under: "9. In the present case the benchmark, (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have "very good" entry for the last five years. Thus in this situation the "good" entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a "good" entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the "good" entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993- 1994 should be upgraded from "good" to "very good". Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the "good" entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the "good" entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the "good" entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. 33. In our opinion, fair play required that the respondent should have communicated the "good" entry of 1993-1994 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Non- communication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice." In paragraphs-41 and 43, the Hon'ble Apex Court held as under: "41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. 43. We are informed that the appellant has already retired from service. However, if his representation for up-gradation of the "good" entry is allowed, he may benefit in his pension and get some arrears. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. 43. We are informed that the appellant has already retired from service. However, if his representation for up-gradation of the "good" entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the "good" entry of 1993-1994 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest. 6. This Court reading through the judgment of the Apex Court in the case of Anil Kumar (supra) in paragraph15 observed as under: "15. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt's case, all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception." In making reference to the decision referred to herein above. 7. Considering the submissions of the parties and looking to the ruling of the Hon'ble Apex Court, this Court finds the facts involving the case at hand is similar to the pleadings in paragraph-3 of the case of Dev Dutt (supra). In such view of the matter, this Court in application of the judgments referred to herein above and as both the above judgments have direct application to the case at hand is inclined to interfere in the action of the management and accordingly declare that rejection of the case of the petitioner based on un-communicated C.C.R. for promotion in the year 2002 is bad and not sustainable in the eye of law. 8. For non-communication of the C.C.R. of the petitioner has a civil consequence because it has affected the chance of promotion and other benefits and it is therefore observed that non-communication of the C.C.R. has no place in the eye of law. 8. For non-communication of the C.C.R. of the petitioner has a civil consequence because it has affected the chance of promotion and other benefits and it is therefore observed that non-communication of the C.C.R. has no place in the eye of law. Further considering that the petitioner has already been retired from service, this Court further directs while permitting the petitioner to make an application against the non-communicated C.C.R. for the year 2002-03. The "Good" entry for the year 2002-03 be communicated to the petitioner within a period of two months from the date of receipt of copy of this judgment and on being communicated to the petitioner, he may make a representation if he is so advised against such entry and on consideration of the representation within two months, if the entry is up-graded, the petitioner's case shall be considered for promotion retrospectively from 01.02.2002, i.e. the date when his next junior was promoted. In such event also the action involving promotion to the petitioner with retrospective effect as well as the consequential financial benefits including higher pension shall be released within a further period of one month. Arrear if any shall be paid along with interest @8% all through. With the above observation, the writ petition is disposed of. No costs.