Shri Govind Chandra Rout vs The State Government of Orissa and Others

P.K. Mohanti, J.—In Govinda Rout case1 a writ of madames was issued by this Court directing the State Government to consider the case of the Petitioner for promotion to the rank of Joint Director of Industries for the period from 10th July, 1958 till the 8th April, 1962 and from 9th October. 1962 till 2nd August, 1967 and to rank of Additional Registrar of Cooperative Societies ( re designated as Director of Textiles) from 11th July, 1972 after ignoring the adverse remarks recorded in the Character Roll of the Petitioner for the period from 1955-56 to 1962-63 vide our judgment dated 10th June, 1974 reported in Shri Govind Chandra Rout Vs. State Government of Orissa and Others, The State Government in their letter dated 10-12-1974 (Annexure-1) intimated the Petitioner that after consultation with the Orissa Public Service Commission they considered his case for promotion to the rank of Joint Director of Industries and Additional Registrar of Co-operative Societies for the periods indicated in our judgment and found him not suitable for promotion to the above ranks for the above periods. Aggrieved by this decision of the State Government the Petitioner has filed this writ petition under Article 226 of the Constitution of. India for issue of a writ of mandamus commanding the State Govt. to promote him to the ranks of Joint Director of industries and Additional Registrar of Co-operative Societies for the above periods and to pay him the arrears of salary and allowances together with interest at 9 percent per annum. His contention is that his case has not been considered on correct principles and that the action of the State Government declaring him unsuitable for promotion amounts to circumventing the orders of this Court. It is contended that in considering the case for promotion the C.C.R. for the years 1955-56 to 1962-63 have been taken into account even though the same were not legally available to be used according to the findings of this Court in the previous case. Neither his qualifications nor his seniority have also been taken into account. It is further alleged that on the relevant dates he was senior to Shri B.B. Mohanty (Opp. party No. 2) both in the substantive post of Deputy Director as well as in the officiating post of Joint Director. This fact has not been taken into account. It is also urged that the principles followed in the matter of promotion during the years 1958 and 1962 have not been applied in considering the Petitioner''s case for promotion.

In the counter affidavit filed on behalf of the State Government it is contended that the case of the Petitioner was referred to the Orissa Public Service Commission "to adjudge his suitability for promotion". A copy of the judgment in Govinda Rout''s easel along with the Character Roll, after Ignoring the adverse remarks, were also forwarded to the Commission. The Commission in consideration of all the materials on record advised the State Government that the Petitioner was not suitable for promotion. After applying their mind fully to the report of the Commission and to the merits of the case the State Government finally decided that the Petitioner was not suitable for promotion during the period from 10-7-1958 till 8-4-1962 and from 9-10-1962 to 2-8-1967.

The Secretary of the Public Service Commission (Opp. party No. 3) has filed a separate counter contending that the Commission re-assessed each entry in the C.C.R. of the Petitioner ignoring all the adverse remarks and found that his performance during the period from 1955-56 to 1962-63 was of average standard. Although this standard would justify the continuance of an officer in the post which he holds, yet it falls short of the minimum standard of fitness or suitability required for promotion to the next higher rank. Therefore, the Commission did not recommend the Petitioner for promotion to the posts of Joint Director of Industries and Additional Registrar of Co-operative Societies for the aforesaid periods.

It is obvious that though the Commission ignored the adverse remarks in the C.C.R. for the period from 1955-56 to 1962-63 they took into account the other remarks recorded therein and came to the opinion that the performance of the Petitioner during the relevant period was of average standard. No doubt, 4 in the operative portion of the order in para 20 of our judgment in the previous case it was stated that the adverse remarks recorded in the C.C.R. for the period from 1955-56 to 1962-63 were fully considered in paragraphs 10 to 15 of the judgment and it was found that the C.C.R. for the years 1955-56, 1956-57 and 1962-63 were incomplete records. For the adverse remarks of the year 1957-58 the Petitioner made a representation which was kept pending for a period of 16 years. It was therefore directed in para 12 that the adverse remarks contained in the C.C.R. for 1957-58 should be ignored. As regards C.C.R. for the years 1959-60, 1960-61 and 1961-62 there was a dear finding in para 14 of the judgment that the remarks for all the three years should be ignored. It is urged on behalf of the Petitioner that after ignoring only the adverse remarks the Character Rolls were forwarded to the Public Service Commission for consideration of the other remarks which were really not adverse, but these C.C.R. being incomplete records should not have been taken into consideration at all.

The learned Government Advocate very fairly conceded that in view of the findings recorded in the body of the judgment of the previous case the C.C.R. entries relating to the period from 1955.56 to 1962-63 should be ignored while considering the case of the Petitioner for promotion at both the stages. He, however, submitted that since the C.C. Rs. for the period from 1955-56 to 1962-63 have to be ignored the only way to assess the merit of the Petitioner will be to make retrospective assessment of his work and performance for the period on the basis of records available in the Directorate of Industries and then to consider the same to arrive at a conclusion about his merit and suitability for promotion. We do not find it possible to accede to the suggestion of the learned Government Advocate that the antecedent official records should be taken into account to consider the suitability of the Petitioner for promotion as the materials available on those records must have been reflected in the Character Roll.

There was no statutory rule governing the conditions of service of the members of the Orissa Industries Service till the year 1971. Therefore the main criterion for judging the suitability for promotion are merit) seniority, competence, qualifications and experience of the eligible candidates at the relevant time.

Having heard both the parties at length and having gone through the records, we are of opinion that the case of the Petitioner should be reconsidered on the following principles:

(a) The case of the Petitioner for promotion to the post of Joint Director as on 10-7-1958 and on 9-10-1962 and to the post of Director of Textiles as on 11-7-1972 shall be considered only with such of the officers who were eligible for promotion to the respective posts on the aforesaid dates.

(b) The Petitioner''s seniority in the rank of Deputy Director of Industries (the then Class-I Senior Grade) as on 10-7-1958 and his seniority in the post of Joint Director as it was on 1-8-1962, i.e. when he was reverted from the post shall be taken into consideration for his promotion to the posts of Joint Director of Industries and Director of Textiles respectively.

(c) The C.C. Rs. for the years 1955-56 to 1962-63 should be ignored.

(d) The C.C. Rs. for the year 1963-64 to 1972-73 which are relevant for consideration of the Petitioner''s case for promotion to the post of Director of Textiles as on 11-7-1972 shall be considered and in so doing, adverse remarks. if any, which have not been communicated to him so far shalt be ignored and as regards the adverse remarks which have been communicated, the representations already made by the Petitioner to Government against those, remarks shall be disposed of by reasoned orders within one month from the date of service of the writ, failing which those remarks shall be ignored.

(e) The criterion for promotion to these posts should be as has been done in the past.

The Petitioner and the learned Government Advocate agreed to the above terms. The writ petition is therefore, allowed and the State Government are directed to reconsider the case of the Petitioner on the aforesaid terms and finalise the matter within a period of three months from the date of service of the writ. Parties to bear their own costs.

G.K. Misra, C.J.

I agree.