Madan Mohan Khatua vs State of Orissa and Others

R.N. Misra, J.—This is an application for a writ of certiorari for quashing the adverse entry made in the confidential character roll of the Petitioner for the year 1972-73 and communicated to him under Annexure-2. Petitioner has also prayed for quashing the promotion of opposite parties 2 to 8 under Annexure-8 and for a re-consideration of the Petitioner�s case along with them.

Petitioner was appointed as a Deputy Collector in the Orissa Administrative Service, Class II in March, 1958. On 16-7-1972 he was promoted to Selection Grade of O.A.S., Class II. Up to 3-8-1972, Petitioner was Sub-Divisional Officer of Banki under the Collector of Cuttack. From 11-8-1972 to 9-11-1972, Petitioner was posted as Officer-on. Special Duty in the Enquiry Cell attached to the Special Relief Commissioner and from 2-12-1973. Petitioner was working as Under Secretary under the Revenue Divisional Commissioner of the Northern Division. On 13-8-1973, Petitioner was communicated the following adverse entry:

A review of the report on your work for the year 1972-73 reveals that you did not get on well with your colleagues...

For the year in question, Petitioner had three postings: (i) as Sub-Divisional Officer under the Collector of Cuttack from 1-4-1972 to 3-8-1972; (ii) as Officer-on-Special Duty under the Special Relief Commissioner from 11-8-1972 to 9-11-1972 and (iii) as Under Secretary attached to the Revenue Divisional Commissioner, Northern Division, from 3-12-1972 to 31-3-1973. The adverse entry relates to the period Petitioner was acting as Officer-on-Special Duty under the Special Relief Commissioner. Petitioner made a representation for expunging the entry but his representation was rejected on 11-9-1974. According to the Petitioner, there was absolutely no basis for the entry and the entry has been made contrary to the appropriate Government instructions. It is alleged that on account of the adverse entry, Petitioner�s name was not included in the list for promotion to the post of O.A.S, Class I for the year 1973 prepared by the Selection Board. It has been further averred that the reporting officer of the adverse entry was himself the Chairman of the Selection Board and, therefore, Petitioner�s name was screened out of the list. In 1974, the Selection Board worked under the same Chairman and Petitioner�s name was also excluded. Ultimately, seven officers being opposite parties 2 to 8 who were juniors to the Petitioner were promoted to the posts of O.A.S., Class I on substantive basis superseding the Petitioner. Petitioner has, therefore, asked foe the reliefs indicated above.

In the counter affidavit, the entry in the confidential character roll has been justified and the other allegations have been denied. It has been pleaded that the Petitioner was not only found unfit in the years 1973 and 1974 but he was also found unfit during 1975-76. In November, 1976, even though Petitioner was found unfit for O.A.S., Class-I (Senior Grade), he has been promoted to the Junior Grade. It has been claimed that the Petitioner is not entitled to any relief in the application.

A Fun Bench of this Court in the case of S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt 227, had occasion to deal at length with the provisions made under administrative instructions issued from time to time in the matter of maintenance of character rolls. As pointed out by the Court, there is no statutory Rule prescribing the maintenance of character rolls. The first administrative instruction was issued under Book Circular No. 5 in December. 1946. The same was modified by Book Circular No. 29 in February, 1953. Under Book Circular No. 36 further modifications were made in August, 1956. Under Book Circular No. 38 of February, 1963, some further modifications were made. Apart from these, administrative instructions made now and then been issued in the matter. On 20th of April, 1956, Government in the Political and Services Department issued a consolidated guideline on the subject of recording of remarks on the work of Gazetted Officers and laid down the procedure for the record and maintenance as also communication of adverse remarks. We may extract a portion thereof:

The undersigned is directed to say that instructions have been issued by Government from time to time for recording Appeal Remarks on the work of the Gazetted officers with a view to judging that performance and efficiency in Public Service. Instructions prescribing procedure and forms are also issued from time to time for recording the remarks, but it is observed that very often instructions issued in this behalf are not being followed strictly. Although in some cases, different dates have been prescribed for recording the same at different levels and for their submission to proper quarters, the time schedule is not adhered to and in some cases, the remarks are not recorded and maintained. ....

Despite instructions issued by Government and by Heads of Departments on the subject from time to time, instances have come to the notice of Government that some officers record remarks basing them on the reports of other officers or on the notes of inspection conducted by others. This cannot be considered fair to the officer concerned. Personal opinion of the recording officer on the general work of an officer based en different aspects such as administrative ability, control of staff, general intelligence, powers of taking responsibility, official conduct, etc., is more helpful than expressing an opinion on the basis of others report. Minor and insignificant defects brought into the annual character report, sometimes create difficulty. Such defect, if any, may be profitably communicated to the officer by the authority at his level to enable the officer to rectify it. Maintenance of ephemeral character roll is of utmost importance and this should be maintained in the shape of a note book and for this no specific form is prescribed.

.... An officer working under superior officer excepts that a line on his work written by the superior officer will be profitable to him and it will go a long way in furthering his future prospects and career. Generally, proper judgment on the work of an officer cannot he formed unless he works for about 4 months under a recording officer. But even then, his performance is sometimes brought to the notice of the higher authorities for some special good or bad work. In that case, this aspect of his work may be recorded....

Representations against adverse remarks will not ordinarily be entertained as the very purpose of such a communication is to enable the officer to know his failings to rectify them and the officer should profit by it. The communication should not be taken as a matter of argument to enter into controversy. In rare cases, however, where the remark is based on fact and is obviously the result of a mistake on the part of the reporting officer, Government win consider the representation. This supersedes all instructions issued so far on the subject....

This instruction which was in force at the time the relevant adverse entry was made and communicated is comprehensive and makes provision for all aspects. A set of revised schedule or instructions indicating the procedure for recording of remarks and the reporting authorities was also enclosed to this Instruction to which we shall make a reference a little later.

The confidential character roll entry for the year was placed before us by learned Additional Government Advocate. Therefrom it is clear that the Collector of Cuttack as also the Revenue Divisional Commissioner of the Northern Division under whom Petitioner worked for the first and the last parts have recorded good remarks. For the middle part, the Special Relief Commissioner-cum-Member, Board of Revenue, made the entry which was considered adverse and communicated to the Petitioner. Admittedly, the Special Relief Commissioner was the reporting officer and the remarks recorded by him were not placed for consideration before any other superior authority and were in due course communicated to the Petitioner. Relying on two Bench decisions of this Court, counsel for the Petitioner contends that the entry is not available to be acted upon and should not have been communicated. The first one is the case of Govind Charan Rout v. Stale Government of Orissa, represented by the Secretary Government, Industries Department and Ors. ILR 1974 Cutt 703. Dealing with the matter, this Court said:

The entire Character Roll of the Petitioner from 1955-56 to 1962-63 was made available to us by the Additional Government Advocate and we have carefully gone through the same. We are satisfied that the procedure prescribed by the Book Circulars for recording of adverse remarks and for communication of the same has been systematically infringed in the case of the Petitioner. Although the Petitioner alleged that the adverse remarks entered in his Character Roll were not genuine and were tainted with bias and prejudice, the State Government did not produce any ephemeral Character Roll maintained by the Reporting Officers. It is also not shown that the defects were brought to the notice of the Petitioner before recording of the adverse remarks. Part IV of the prescribed form has been left blank in the C. C. R. for most of the years. None of the Character Rolls also contains any remark by the Deputy Minister or the Minister in the appropriate column of the prescribed form. Thus, the impugned Character Rolls are incomplete records.

In the second case Sarat Chandra Misra Vs. The State of Orissa and Another, , the Court observed:

As regard the adverse entries in C.C.R. the Petitioner�s main contention is that the procedure prescribed by the Book Circulars No. 5 dated 4-12-1946, No. 29 dated 19-2-1953 and No. 36 dated 11-8-1958 regarding preparation and maintenance of the Confidential Character Roll and for communication of the adverse remarks was not followed by the authorities concerned and that on account of the invalid adverse entries in the C. C. R. the Public Service Commission did not recommend his case for promotion on regular basis. The entire Character Roll of the Petitioner for the years 1964-65 to 1967-68 was made available to us by the learned Standing Counsel and on a careful scrutiny of the same we are of the opinion that there is considerable force in the Petitioner�s contention. None of the Character Rolls contains any remark by the Deputy Minister or the Minister in the appropriate column of the prescribed form and as such the C. C. Rs. are incomplete records and there is no means at present to complete the same.

xx xx xx

...There is no signature or date under this entry. It cannot therefore be said to be an entry made by the counter signing officer. The entry being unsigned and undated cannot be acted upon.

Learned Additional Government Advocate contends that the view expressed in these two decisions would not be applicable to the present case on account of the fact that the comprehensive circular of 1966 had done away with the previous Book Circulars and other instructions and had prescribed the guideline comprehensive in character. Entry 31 of the Schedule of Instruction is applicable to the Petitioner and it provides as follows:

Officers reported upon.

...

31.Officers working in the office of the Board of Revenue (excepting officers of Director of Land Records and Surveys and Excise Commissioner and Land Reforms Commissioner.

Reporting authorities

...

Secretary, Board of Revenue/ Member, Board of Revenue.

Remarks.

Secretary, Board of Revenue will record his remarks on the work of the officers and send them to Member, Board of Revenue by the 30th April each year. Member. Board of Revenue will record his own and transmit them to the Political and Services (Special Establishment) Department by the 15th May each year.

In the instant case, the Member, Board of Revenue being the reporting authority, there was no requirement of any other superior officer to deal with the entry. The point raised by Mr. Rath for the Petitioner has, therefore, no force, and the character roll is not open to challenge on the ground that it was not complete and had not reached a stage for being acted upon.

There are, however, two contentions of Mr. Rath against the entry which cannot be brushed aside. Admittedly Petitioner had served under the Member, Board of Revenue, acting as Special Relief Commissioner, for a period of less than three months (August 11, 1972 to November 9, 1972) and, therefore, there would have been no occasion in the normal course for the superior officer to make a record in the confidential character roll. In paragraph 3 of the Instruction of 1966, which we have already extracted, it has been stated:

.... Generally, proper judgment on the work of an officer cannot be formed unless he works for about 4 months under a reporting officer. But even then, his performance is sometimes brought to the notice of the higher authorities for some special good or bad work. In that case, this aspect of his work may be recorded....

The adverse remark is that the Petitioner did not get on well with his colleagues. This does not seem to be a particular bad work within the scheme indicated in paragraph 3 of the Instruction of 1966.

The Instruction of 1966 also reiterates the need of maintaining an ephemeral character roll. No such roll seems to have been maintained and, at any rate, the opposite party No. 1 has not chosen to produce any such roll. The importance of such an ephemeral character ran has been emphasised in the two reported decisions referred to earlier as also by the Full Bench (supra). There is no material on record also to show that there was a contemporaneous intimation to the Petitioner that his conduct suffered from the draw-back of not pulling on well with his colleagues. The absence of an ephemeral character roll and the fact that the entry has been made though the officer concerned was employed under the reporting officer for less than three months are two important features against the entry.

As the administrative instruction of 1966 shows, representations against adverse entries are seldom entertained. In the instant case, the representation of the Petitioner has been disposed of without indication of any ground. It also does not show that the defects pointed out by the Petitioner against the record of the entry were taken into consideration. Undoubtedly, the representation made by the Petitioner to the administrative superior is not required to be disposed of as a revision to a judicial authority. Yet, it is appropriate that the representation made to the administrative superior is disposed of in such a manner that the representationist is in a position to appreciate that the grievances indicated in the representation were taken into account. A bald order indicating the fact of rejection would not satisfy the aggrieved officer and is likely to create an impression that the merit of the matter has not been taken into account. Even if on account of change in the administrative instructions in the matter of maintenance of character roll, the two Bench decisions of this Court (referred to earlier) are not applicable with full force, the observation regarding the importance of the ephemeral character roll and the need of putting the officer to notice of the draw-back in a contemporaneous manner should not have been lost sight of. We are inclined to agree with Petitioner�s counsel that the representation should be required to be disposed of afresh taking these aspects into consideration.

We accordingly quash the order made on the representation as also on the memorial and would require the opposite party No. 1 to dispose of the representation of the Petitioner afresh keeping the aspects highlighted in the judgment in view. We make no direction for costs.

K.B. Panda, J.

I agree.

Application allowed.