Orissa High Court
Kailash Chandra Dora vs State Of Odisha & Ors. ....... Opposite ... on 8 January, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Jan-2025 18:12:11
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 20183 of 2021
(An application under Articles 226 & 227 of the Constitution of India)
Kailash Chandra Dora ....... Petitioner
-Versus-
State of Odisha & Ors. ....... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. B.B.Mohanty, Advocate
For Opposite Parties : Mr. D.Mohanty, AGA
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
th
8 January 2025
B.P. Routray,J.
1. Heard Mr. B.B.Mohanty, learned counsel for the Petitioner,
and Mr. D.Mohanty, learned AGA for State-Opposite Parties.
2. The Petitioner assails the adverse remarks entered in his
PAR/CCR for the period from 16th May 2018 to 5th December 2018.
The Petitioner had earlier approached this Court in another writ
petition and pursuant to the direction passed by this Court, wherein
the authorities were directed to reconsider and pass a reasoned order,
Opposite Parties have rejected the prayer of the Petitioner under
Annexure-10 to expunge the adverse remark.
Location: High Court of Orissa, Cuttack
3. It is true that the scope of judicial review in such matters to
interfere with the administrative decision of the authority is very
limited. At the same time, it would also not be incorrect to observe
that the remarks given by competent authority with regard to the
performance of an employee in his character role can only be
interfered with when the same is arbitrary and filled with malice. The
remark given by the authority must be to his subjective satisfaction. In
Union of India vs- Lt. Gen. Rajendra Singh Kodyan, (2000) 6 SCC
698, it is observed that, "Maybe one may emphasize one aspect rather
than the other but in the appraisal of the total profile, the entire
service profile has been taken care of by the authorities concerned
and we cannot substitute our view to that of the authorities. It is a
well-known principle of administrative law that when relevant
considerations have been taken note of and irrelevant aspects have
been eschewed from consideration and that no relevant aspect has
been ignored and the administrative decisions have nexus with the
facts on record, the same cannot be attacked on merits. Judicial
review is permissible only to the extent of finding whether the process
is reaching decision has been observed correctly and not the decision
as such."
4. In Dev Dutt v. Union of India & Ors., AIR 2008 SC 2513
which was referred by this Court to in Suchismita Misra v. Registrar
(Administration), 2018 (II) OLR 1112, it has been observed as
follows:-
"17. In our opinion if the Office Memorandum dated
10/11.09.1987, is interpreted to mean that only adverse
entries (i.e. `poor' entry) need to be communicated and not
Location: High Court of Orissa, Cuttack
`fair', 'average' or 'good' entries, it would become arbitrary
(and hence illegal) since it may adversely affect the
incumbent's chances of promotion, or get some other
benefit.
18. For example, if the bench mark is that an incumbent
must have `very good' entries in the last five years, then if
he has `very good' (or even `outstanding') entries for four
years, a `good' entry for only one year may yet make him
ineligible for promotion. This 'good' entry may be due to
the personal pique of his superior, or because the superior
asked him to do something wrong which the incumbent
refused, or because the incumbent refused to do
sycophancy of his superior, or because of caste or
communal prejudice, or for some other extraneous
consideration.
25. In the present case, the action of the respondents in not
communicating the 'good' entry for the year 1993-94 to the
appellant is in our opinion arbitrary and violative of
natural justice, because in substance the `good' entry
operates as an adverse entry (for the reason given above).
26. What is natural justice? The rules of natural justice are
not codified nor are they unvarying in all situations, rather
they are flexible. They may, however, be summarized in
one word : fairness. In other words, what they require is
fairness by the authority concerned. Of course, what is fair
would depend on the situation and the context.
36. In our opinion, fair play required that the respondent
should have communicated the 'good' entry of 1993-94 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.
37. Originally there were said to be only two principles of
natural justice : (1) the rule against bias and (2) the right to
Location: High Court of Orissa, Cuttack
be heard (audi alteram partem). However, subsequently, as
noted in A.K. Kraipak's case (supra) and K.L. Shephard's
case (supra), some more rules came to be added to the
rules of natural justice, e.g. the requirement to give
reasons vide S.N. Mukherji vs. Union of India AIR 1990
SC 1984. In Maneka Gandhi vs. Union of India (supra)
(vide paragraphs 56 to 61) it was held that natural justice
is part of Article 14 of the Constitution."
5. In S.Ramachandra Raju v. State of Odisha, AIR 1994 SC
85 the Hon'ble Supreme Court has underlined the principles about the
need to write confidential reports objectively, fairly and
dispassionately in a constructive manner either commenting
/downgrading the conduct, character, efficiencies or integrity of the
officer. It is also explained that writing confidential reports bears
onerous responsibility on the Reporting Authority to eschew his
subjectivity and personal prejudices and proclivity or predilections
and to make objective assessment. Therefore, the authority should
adopt fair, objective, dispassionate and constructive comments in
estimating or assessing the character, ability, integrity and
responsibility displayed by the officer/employee concern by adhering
to the principles of honest assessment.
6. Mr. Mohanty, learned counsel for the Petitioner submits
that the Petitioner did not have any other adverse remark during his
service career from 2014 onwards in Odisha Financial Service except
the period aforestated. Accordingly, this Court by order dated 8th
November 2024 directed the Additional Government Advocate to
produce the entire CCR/PAR of the Petitioner. The copies of such
CCRs/PARs being produced by Mr. D. Mohanty, learned AGA, this
Court perused the same. It is found from the reports that the Petitioner
Location: High Court of Orissa, Cuttack
has been graded either 'very good' or 'good' during his entire career,
pre and post the period under question. This Court also does not find
any other adverse remark recorded in the PAR of the Petitioner for
any such period except the adverse remark communicated to him
under Annexure-2 for the period from 16th May 2018 to 5th December
2018. Even in all such PARs the integrity of the Petitioner has been
recorded as beyond doubt.
7. According to the Petitioner he was prejudiced by such
adverse remark recorded against him by the Accepting Authority for
that particular period as he was not considered for promotion for the
reason of that adverse remark entered against him. Such prejudice
caused on the part of the Petitioner authorizes this Court to interfere
with the remarks given in the PAR of the Petitioner as impugned in
the present writ petition.
8. As stated above, the principles enumerated in the case of
Dev Dutta (supra) speak that the principle of non-arbitrariness in
State action as envisaged in Article 14 of the Constitution of India is
the central consideration in all matters testing the ability of an
employee. In the meantime, Government of Odisha in General
Administration Department has issued Circular No.674 dated 16th
March 2020 mentioning the guidelines for preparation of PARs and
marking by authority. Extract of said circular relevant to be quoted
here is reproduced below:-
"Xx .. .. .. xx .. .. ..
Location: High Court of Orissa, Cuttack
Warning/Displeasure issued
There may be certain situations where the superior officer may find it
necessary to put forward a remark regarding the working of the officer
subordinate to him, regarding some act of omission. In such cases it may
be felt that while the matter is not serious enough to justify the
imposition of formal punishment of censure, it calls for some formal
action such as communication of some written warning/ displeasure/
reprimand. The same should be placed in the personal file of the
concerned officer. At end of the period under report, the authorities while
writing the PAR of the concerned officer may decide not to make a
reference of the warning report, if in the opinion of that authority, the
performance of the officer concerned has improved and has been found
satisfactory. On the other hand, if the authority is of the opinion that
despite such warning there has been no change in conduct of the conduct
of the officer concerned, the report has to be entered in the PAR.
9. What is seen on verification of PAR of the Petitioner for his
entire service period, that, he has been graded with 'very good'
mostly without any doubt on the question of his integrity. For the
period in question i.e. 16th May 2018 to 5th December 2018, the
Reporting Authority and Reviewing Authority have both graded the
Petitioner as 'very good'. But the Accepting Authority substituted his
opinion by stating adverse against the Petitioner to grade him an
officer 'below average'. The remarks as communicated to the
Petitioner and entered in the CCR for said period shows that the
Petitioner was transferred on administrative ground and large number
of complaints from public were received against him. Further, his
achievement in official work was very unsatisfactorily.
Location: High Court of Orissa, Cuttack
10. It needs to be mentioned here that as per the transfer order
dated 31st October 2018 (Annexure-4) no such mention is there that
the same is for administrative ground. It rather appears a regular
transfer order. Further, no material could be produced in the counter
against the Petitioner to reveal any single complaint made against the
Petitioner. So far his assessment and achievement in official work is
concerned no instance has been given by the Accepting Authority nor
even in the counter affidavit filed by the State. When the Reporting
Authority and Reviewing Authority have both graded 'very good' to
the Petitioner without finding any adverse against him, it is
imperative on the part of the Accepting Authority to illustrate the
reasons and instances for recording adverse against the Petitioner
contrary to the opinions of Reporting and Reviewing Authority.
Therefore, the subjective satisfaction on the part of the Accepting
Authority to record adverse remark against the Petitioner
downgrading him as an officer 'below average' for that particular
period is lacking and as such, the same is unsustainable.
11. In view of the discussions made above, such adverse
remark recorded against the Petitioner as per Annexure-2 is quashed
and the opinion of the Reporting as well as Reviewing Authority is
retained.
12. Accordingly, the writ petition is allowed.
(B.P. Routray)
Judge
Sangram,Sr.Steno
