Orissa High Court
Afr Padmanav Choudhury vs State Of Orissa & Ors on 17 January, 2023
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 32664 OF 2011
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Padmanav Choudhury ..... Petitioner
-Versus-
State of Orissa & Ors. ..... Opp. Parties
For Petitioner : M/s. B. Mohanty, B. Samantray,
R.K. Bisoi and B. Tripathy,
Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate
[O.Ps.No.1& 2]
M/s. S.B. Jena & A. Swain,
Advocates
[O.P. No.3]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE B.P. SATAPATHY
DECIDED ON : 17.01.2023
DR. B.R. SARANGI, J. The petitioner, who belongs to OFS cadre,
by means of this writ petition, seeks to quash the order
dated 24.06.2011 under Annexure-4 passed by the
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Orissa Administrative Tribunal, Bhubaneswar in O.A.
No.571 of 2009, the letter dated 23.04.2004 issued by
opposite party no.3-OPSC and the order of reversion
dated 04.09.2004, and further seeks to issue direction to
opposite parties no.1 to 3 to antedate his date of
promotion to OFS 1(JB) to the date of promotion of his
juniors, i.e., 05.09.2002 or to 08.05.2003, i.e., the date
when he was given ad hoc promotion.
2. The factual matrix of the case, in brief, is that
the petitioner was appointed in OFS regular recruitment
for 1988-89, pursuant to which he joined on 05.11.1988.
While continuing in service, adverse remark in his CCR
for the year 1995-96 was communicated on 29.12.1999.
His batchmates in OFS cadre and immediate juniors were
promoted to OFS (I) JB on 05.09.2002, pursuant to
which they joined on 08.05.2003. Disciplinary
proceeding, which was pending against the petitioner as
on the date of DPC, resulted into keeping the fate of
consideration in respect of the petitioner in sealed cover
was withdrawn on 17.09.2002. Adverse remarks
communicated to the petitioner, vide letter dated
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29.12.1999 was expunged on 01.02.2003. The Review
Selection Board meeting was held on 12.03.2003 for
promotion to OFS-I (JB) for 2001-2002. The petitioner
was promoted to OFS-I(JB) on ad hoc basis on
08.05.2003. On 23.04.2004, opposite party no.3-OPSC
refused to grant concurrence to the ad hoc promotion
granted by Review Selection Board. As a consequence
thereof, the petitioner was reverted to OFS-(II) on
04.09.2004.
2.1 Challenging the order of reversion dated
04.09.2004, the petitioner approached the Orissa
Administrative Tribunal, Cuttack Bench, Cuttack by
filing O.A. No.1794 (C) of 2004 and subsequently on
transfer to the Orissa Administrative Tribunal, Principal
Bench, Bhubaneswar, the same was renumbered as O.A.
No.360 of 2007. During pendency of this O.A., the
petitioner was promoted to OFS-I (JB), vide order dated
27.07.2005. Therefore, he filed a representation to the
Government requesting to antedate his promotion to the
date when his juniors were promoted i.e. w.e.f.
05.09.2002. The Tribunal, vide order dated 24.07.2007
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disposed of the said O.A. directing the opposite parties to
consider his representation and pass appropriate order.
On 12.12.2008, CCRs were called for to effect the
promotion in OFS (SB). The Gradation List of OFS-I(JB)
prepared as on 01.01.2009 did not reflect the seniority
position by antedating promotion to 05.09.2002.
Therefore, the petitioner approached the Tribunal by
filing O.A. No.571 of 2009 assailing the inaction of the
opposite parties and seeking direction to antedate his
promotion w.e.f. 08.05.2003 with all financial and service
benefits. The Tribunal, vide order dated 24.06.2011
disposed of the said O.A. by not acceding the prayer
made in the application itself. Hence, this writ petition.
3. Mr. R.K. Bisoi appearing on behalf of Mr. B.
Mohanty, learned counsel for the petitioner contended
that because of pendency of the disciplinary proceeding,
the petitioner was not given promotion in due time. When
the adverse remarks were expunged, he claimed for
promotion from the date, i.e. 05.09.2002, when his
juniors were promoted to the post of OFS-I(JB). But the
same was not taken into consideration. As such, ad hoc
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promotion was granted to the petitioner and when the
same was not concurred by the OPSC, he was reverted to
OFS-(II) on 04.09.2004. Subsequently, he got promotion
to the post of OFS-I (JB) on 27.07.2005. Therefore, the
reversion of the petitioner to the post of OFS-(II), vide
order dated 04.09.2004 is absolutely an outcome of non-
application of mind. More so, the claim of the petitioner is
that he should be granted promotion w.e.f. 05.09.2002,
the date his juniors were promoted. It is further
contended that the Tribunal has failed to perceive that
the only adverse CCRs, which were communicated to the
petitioner was expunged, vide letter dated 01.02.2003.
Thereby, the Tribunal has failed to consider the fact that
DPC held on 06.02.2002 kept the finding in sealed cover
on account of pendency of a departmental proceeding but
not on account of adverse CCR. Since the departmental
proceeding was withdrawn, vide order dated 17.09.2002,
the Review DPC held on 12.03.2003 opened the sealed
cover and found him suitable for promotion and he was
accordingly promoted, vide order dated 08.05.2003. But
the Tribunal has committed gross error in appreciating
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the facts. To substantiate his contentions, learned
counsel appearing for the petitioner has relied upon the
judgments of the apex Court in Dev Dutt v. Union of
India, AIR 2008 SC 2513 and Abhijit Ghosh Dastidar
v. Union of India, (2009) 16 SCC 146.
4. Mr. A.K. Mishra, learned Additional
Government Advocate appearing for the State-opposite
parties on the basis of facts contended that there is no
dispute with regard to adverse remarks in the CCR and
the petitioner was facing departmental proceeding. After
exoneration from the adverse CCRs, the case of the
petitioner was considered for promotion to the post of
OFS-I(JB) on ad hoc basis vide Finance Department
Notification dated 08.05.2003. Since OPSC did not grant
concurrence to the promotion, the petitioner was reverted
to the post of OFS-(II) on 04.09.2004.
5. Mr. S.B. Jena, learned counsel appearing for
opposite party no.3-OPSC contended that since the
departmental proceeding was pending and the petitioner
faced adverse remarks in CCR, the OPSC could find as to
how the review selection board found the petitioner
// 7 //
suitable for promotion. The records available before the
DPC were not complete for five relevant years. The service
records indicate he had been rated 'average' when he was
working as Sales Tax Officer under the Finance
Department. Therefore, the so-called ad hoc promotion
given to the petitioner cannot be sustained in the eye of
law. As such, after expunction of adverse remarks, his
performance was under scrutiny for a period of three
years and that period was not expired. As a consequence
thereof, OPSC has not committed any error by not giving
concurrence to the ad hoc promotion of the petitioner.
Therefore, the Tribunal is well justified in passing the
order impugned, which does not warrant interference of
this Court.
6. This Court heard Mr. R.K. Bisoi on behalf of
Mr. B. Mohanty, learned counsel appearing for the
petitioner; Mr. P.P. Mohanty, learned Additional
Government Advocate appearing for the State-opposite
parties and Mr. S.B. Jena, learned counsel appearing for
opposite party no.3-OPSC through hybrid mode.
Pleadings have been exchanged between the parties and
// 8 //
with the consent of learned Counsel for the parties, the
writ petition is being disposed of finally at the stage of
admission.
7. The factual matrix, as succinctly enumerated
above, is not in dispute. The only question required to be
considered is that once the adverse remarks are
expunged vide communication dated 29.12.1999 and the
Review Selection Board meeting held on 12.03.2003
found the petitioner suitable for promotion to the post of
OFS-I(JB) for 2001-02, whether the OPSC is well justified
in refusing to grant concurrence to the ad hoc promotion
of the petitioner, vide letter dated 23.04.2004, resulting
reversion of the petitioner to the post of OFS-(II) on
04.09.2004.
8. On the basis of the materials available on
records, it appears that the proposal for promotion to the
post of OFS-I(JB) for the year 2001-02 relating to the
Selection Board dated 06.02.2002 was received from the
Government in Finance Department in their letter dated
09.10.2002 for consideration by the OPSC. The said
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Board had nominated 41 officers against 25 vacancies
and considered the petitioner 'unsuitable' for promotion
to OFS, Class-I (J.B) due to pendency of departmental
proceedings and recording of adverse entries in his CRs
for the period 1995-96, i.e. 17.05.1995 to 31.03.1996
and 1997-98. As a result, the recommendation of the said
Selection Board in respect of the petitioner was kept in
sealed cover. Therefore, the OPSC while considering the
aforesaid proposal had recommended only 4 officers for
such promotion and requested the Government in
Finance Department to send the complete CCRs of the
remaining nominated officers for consideration by the
OPSC letter dated 23.04.2003. Instead of sending the
complete CCRs of the remaining nominated officers, the
Government in Finance Department had intimated vide
letter dated 23.05.2003 that the departmental
proceedings drawn up against the petitioner has been
closed and charges withdrawn in Finance Department
office order dated 17.09.2002 and the recommendation of
the Selection Board in respect of the petitioner which was
kept in sealed cover was opened on 28.09.2002 in which
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it is found that the Selection Board had considered the
petitioner unsuitable for such promotion. Further, the
Department intimated that adverse remarks recorded in
the CCRs of the petitioner for the period 1995-96
(17.05.1995 to 31.03.1996) has been expunged in G.A.
Department D.O. dated 01.02.2003 and on the basis of
his representation, a review DPC which was held on
12.03.2003 to consider the suitability of the petitioner for
promotion to OFS-I(J.B) had recommended the name of
the petitioner for promotion to OFS, Class-I(JB).
Accordingly, he was allowed promotion to OFS, Class-
I(JB) on ad hoc basis for a period of one year, vide
Finance Department's Notification dated 08.05.2003. As
such, the Government in Finance Department had
requested the OPSC to communicate their view with
regard to promotion of the petitioner to the rank of OFS,
Class-I(JB) against the Review Selection Board held on
12.03.2003.
9. The OPSC, while examining the proceedings of
review Selection Board held on 12.03.2003 and
assessment of CCRs furnished by the Department, could
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not find as to how the review Selection Board found the
petitioner suitable for promotion. The records available
before the DPC were not complete for five relevant years.
The records of previous year 1994-95 also contain 'No
Remarks'. The Selection Board held on 06.02.2002 had
not considered him suitable. In this background, the
OPSC went through the CCRs available in the year 1992-
93 wherein his administrative ability is found satisfactory
and knowledge of Law is satisfactory. In the year 1993-
94, it has been observed that the petitioner's performance
is indifferent and average in nature. In the year 1996-97,
it appears that power of taking responsibility is average,
his output is average and knowledge of Law and
Accounts is average, and his overall performance is
average. In the year 1997-98, his power of taking
responsibility is adjudged as average. His knowledge of
Law and Accounts is average, and overall performance is
average. At the same time, the petitioner had
'Outstanding' remarks in the year 1998-99 when he was
working in Animal and Husbandry Department. But he
had been rated 'Average' when he was working as Sales
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Tax Officer under the Finance Department. Taking all
these facts into consideration, the OPSC felt that the
petitioner with such records is not fit for promotion to the
next higher rank. Therefore, the OPSC has not given
concurrence to the recommendation made for giving him
promotion to the post of OFS-I(JB) and as a consequence
thereof, he was reverted back to the post of OFS-(II).
10. The Tribunal, while adjudicated the matter,
came to a finding that it is not to sit on the opinion and
the findings of the OPSC unless it suffers from
arbitrariness and, as such, the Tribunal found that the
OPSC has carefully considered the performance of the
petitioner to adjudge his suitability to hold the
promotional post. Considering his CCRs, the Tribunal
held that the petitioner was an average rated officer and,
therefore, the reasons stated by the OPSC for not giving
promotion are not arbitrary or mala fide and
consequently dismissed the O.A. filed by the petitioner.
11. The petitioner has placed reliance on the
judgments of the apex Court in Dev Dutt and Abhijit
// 13 //
Ghosh Dastidar (supra). The cases of the petitioners
therein are factually different than the case of the
petitioner herein and, as such, the reasons which have
been assigned are not akin to the present one. Therefore,
the said judgments are distinguishable.
12. In the above view of the matter, this Court is of
the considered opinion that the Tribunal is well justified
in dismissing the O.A. No.571 of 2009 vide order dated
24.06.2011.
13. Accordingly, the writ petition merits no
consideration and same is hereby dismissed. However,
there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
B.P. SATAPATHY, J. I agree.
(B.P. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 17th January, 2023, Alok
