The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5437 of 2022 (This is an application under Article 226 and 227 of the Constitution of India) Rangadhar Acharya …. Petitioner -versus- State of Odisha and others …. Opposite Parties For Petitioners For Opp. Parties : : M/s. J. K. Rath, Sr. Advocate, D.N. Rath and A.K. Saa Mr. B.P. Tripathy, learned Addl. Govt. Advocate M/s. Mr. Susanta Kumar Dash, A.K. Otta, S. Das. N.K. Das, A. Sahoo, E. Dash, P. Das and C.K. Mohapatra, Advocate for the O.P. No.5 CORAM: JUSTICE A.K. MOHAPATRA JUDGMENT Date of hearing : 21.12.2022 | Date of Judgment : 31.03.2023 A.K. Mohapatra, J. // 2 // 1. By invoking the power of judicial review under Article 226 of the Constitution of India, the petitioner has approached this Court by filing the above noted writ application. In the present writ application, the petitioner has assailed the decision of the Opposite Party No.3 vide Annexure-10 to the present writ application whereunder the Opposite Party No.3 has recommended the name of the private Opposite Party for promotion to the post of Fire Officer ignoring the just and legitimate claim of the petitioner over the said post. It is apt to mention here that the petitioner is continuing as a Deputy Fire Officer at the moment. 2. The factual back drop of the present case, in a narrow compass, is that Odisha Fire Service Act, 1993 was enacted on 29.12.1993. However, no rules were framed under the said Act to regulate the recruitment to different posts in the Fire Services. Vide resolution dated 23.06.1997, the State Government fixed the criteria for appointment and promotion to different rank of Odisha Fire Services such as Deputy Fire Officer and Fire Officer in Odisha Fire Services. Furthermore, on 24.06.2002, the State Government vide a resolution prescribed the criteria for selection and appointment to the rank of Assistant Fire Officer in Orissa Fire Service. 3. In view of the above noted resolution dated 26.04.2002, a Station Officer, who had rendered ten years of service as on the 1st day of // 3 // January of the year in which the DPC meets and subject to successful completion of training of the Station Officer at the recommended institute, such Station Officer shall be eligible for consideration for promotion to the post of Assistant Fire Officer. Accordingly, the DPC meeting was convened and the petitioner, who was recruited as a Station Officer on 21.02.2000 was promoted to the post of Assistant Fire Officer on 30.08.2011. 4. So far Opposite Party No.5 is concerned, he was appointed on 21.02.2000 and was promoted to the post of Assistant Fire Officer on 25.07.2011 under the reserved category, as posts were lying vacant under the reserved category quota post of Assistant Fire Officer. Although the petitioner was appointed subsequent to the Opposite Party No.5, however, on being promoted to the post of Assistant Fire Officer on 30.08.2011, his original position was restored back as per the final merit list prepared for selection of Station Officer. It has also been pleaded in the writ application that in the selection test for the post of Station Officer, the petitioner was placed above the Opposite Party No.5 in the final merit list. Accordingly, the final gradation list of the post of Assistant Fire Officer was prepared and circulated on 30.07.2013 whereunder the present petitioner was placed at Sl. No.12 and the Opposite Party No.5 at Sl. No.13. // 4 // 5. The resolution dated 23.06.1997 provides for the criteria for appointment and promotion to the rank of Deputy Fire Officer and the Fire Officer. As per the said resolution, an Assistant Fire Officer, who has completed the training in Divisional Officers Course at the designated institute and has rendered at least five years of continuous service in the said rank as on the 1st day of January of the year in which the DPC meets, shall be eligible for promotion to the rank of Deputy Fire Officer. Accordingly, the case of the petitioner was considered by the DPC for promotion to the rank of Deputy Fire Officer pursuant to the said resolution dated 27.06.2017. Similarly, the Opposite Party No.5 was promoted on 25.07.2016 under the reserved category quota. However, once the petitioner was promoted, the petitioner was placed above the
Legal Reasoning
Opposite Party No.5 in the cadre of Deputy Fire Officer in the gradation list i.e. against Sl. No.9 and the Opposite Party No,5 was placed against Sl. No.10. In the final gradation list of Deputy Fire Officer published and circulated on 27.01.2021. 6. While this was the position, the next promotional post for both the petitioner and the Opposite Party No.5 is the post of Fire Officer. For promotion to the post of Fire Officer, a DPC meeting was convened and held on 22.12.2021 to consider suitability, eligibility of Deputy Fire Officers for promotion to the post of Fire Officer. Further, in the // 5 // meantime, the Government of Odisha framed a set of rules which is known as Odisha Fire Service (Method of Recruitment and Condition of Service of Group-A and Group-B Officers) Rule, 2021. The said rule came into force w.e.f. 13.08.2021. 7. Rule-28 of the Rule, 2021 lays down the eligibility criteria for promotion to the post of Fire Officer from the post of Deputy Fire Officer. For reference and appreciation, such rule has been extracted herein below:- “28(i) Have completed three years of qualifying service in the rank of Deputy Fire Officer on the 1st day of January of the year in which the Committee meets. (ii) Have passed the Departmental Examination in Accounts conducted Board of Revenue, Odisha. (iii) Have good service record. (iv) Be free from vigilance and criminal cases. (v) Must have physically fit and mentally sound. (2) The inter se seniority of fire Officers shall be determined according the their position to approved select list of Deputy Fire Officer.” in 8. Clause-III of Rules-28(i) provides that the officer must have good service record as a Deputy Fire Officer. The case of the petitioner was not considered by the DPC in view of clause-III of Rule-28. It is stated in the writ application that the CCR of the petitioner for the year 2014-15 // 6 // and 2015-16 was below average and therefore, the same was treated to be an adverse entry and accordingly, the DPC did not consider the case of the petitioner for promotion to the post of Fire Officer. The minutes of departmental promotion committee meeting held on 22.12.2021 to consider the promotion of Deputy Fire Officer to the rank of Fire Officer has been obtained by the petitioner through RTI application and the same has been annexed to the writ application as Annexure-10. The relevant portion is quoted herein below:- “The meeting was held under the Chairmanship of through Video ACS, Home Department Conferencing. The following members were present and took part in the discussion. 1. Sri Arun Kumar Ray, IPS, D.G. Fire Service Dr. Santosh Bala, IPS, Special Secretary, 2. Home Department
Legal Reasoning
Sri Bibhuti Bhusan Mishra, OAS, Additional 3. Secretary, Home Department. Initiating the discussion the Additional Secretary appraised that there was six sanctioned post of Fire Officer. Out of which one post is lying vacant consequent upon promotion of Sri Arun Sarangi to the rank of Chief Fire Officer. Another post will remain vacant soon after retirement of one Sri Ananta Charana Sethy, Fire Officer in the month of March, 2022. So, altogether two posts will be filled up. The committee perused all required documents like CCR, Vigilance clearance as well as D.P. Cases. It was seen that the two Deputy Fire Officers namely Sri Trilok Kumar Babu and Sri Satyapir Behera were found suitable for promotion to the rank of Fire // 7 // Officer. Besides the CCR and other documents of one officer namely Sri Rangadhar Acharya was also examined. As the CCR of the said officer for the year 2014-15 and 2015-16 was below average it was treated as adverse and was decided to keep it in sealed cover till final disposal.” 9. Being aggrieved by the decision taken in the DPC meeting held on 22.12.2021, through video conferencing, the petitioner has approached this Court by filing the present writ application. The petitioner seeks to challenge the decision taken in the DPC meeting as quoted hereinabove on the following principal grounds:- (Group-A) (a) The petitioner having been promoted to the post of Deputy Fire Officer by following the rules and resolution dated 23.06.1997 and the case of the petitioner having been duly recommended by the DPC to the Government and the Government in consultation with the Odisha Public Service Commission (OPSC) having notified the promotion of the petitioner to the rank of the Deputy Fire Officer dated vide 27.06.2017 is estopped to say that the petitioner is having below average CCR in the year 2014-15 and 2015-16 and for which he is not eligible for promotion to the post of Fire Officer. When there is no adverse entry in the service record of the petitioner, from the date of his promotion to the post of Deputy Fire Officer w.e.f. 27.06.2017 till the DPC was convened and held on 23.12.2021, therefore, the finding of the DPC in its meeting held on 26.12.2021 under Annexure-10 illegal, arbitrary and unreasonable. notification is (b) When the petitioner was promoted to the post of Deputy Fire Officer in June, 2017, DPC did not consider the entries in CCR in the year 2014-15 and 2015-16 as adverse. Moreover, such entries in // 8 // the aforesaid respect of two years were not communicated to the petitioner by the competent authority. Therefore, the DPC meeting held on 22.12.2021 for promotion to the post of Fire Officer, could not have considered the entries in respect of the aforesaid two years as adverse and accordingly, they should not have ignored the case of the petitioner’s promotion to the post of Fire Officer. the case of (c) The so-called adverse entries, as stated by the DPC in respect of the year 2014-15 and 2015-16 relates to a period when the petitioner was continuing as Assistant Fire Officer. Despite such entries being available on record, the DPC which was held in June, 2017 to consider the promotion to the post of Deputy Fire Officer did not consider such entries to be adverse and accordingly, the petitioner was considered and he was given promotion to the post of Deputy Fire Officer w.e.f. 27.06.2017. It was also contended by Mr. J.K. Rath, learned senior counsel appearing on behalf of the petitioner that the adverse entries, if at all, there is any the same existed prior to the promotion is granted where the merit was also a criteria for considering the promotion to the next higher post. The petitioner was promoted to the post of Deputy Fire Officer in the year 2017 when the so-called adverse entries were available on record and the DPC, which was confined to consider the promotion to the post of Deputy Fire Officer, did not consider the the same as adverse entries. Therefore, subsequent DPC for promotion to the next higher posts is estopped to dig out entries of the year 2014- 15 and 2015-16, which was earlier considered by another DPC held in the year 2017 and found the same not to be adverse, and as such, the observation in the recommendation of the DPC under Annexure- 10 that remarks against the petitioner were adverse for the aforesaid two years is clearly unsustainable in law. (d) Mr. J.K. Rath, learned senior counsel appearing on behalf of the petitioner next argued that besides the // 9 // to the petitioner by above, the so-called adverse entries have also not been communicated the competent authority in terms of the guidelines prepared and followed by the State Government. the question of communication of Therefore, any adverse representation thereto is completely misconceived and baseless. submitting entries and not (e) It was further contended by learned senior counsel appearing on behalf of the petitioner that in the counter affidavit of the State Government, reliance has been placed on Annexure-A/2 i.e. the guidelines of the G.A. Department relating to recording of PAR of Group-B Officers of the State Government. He further contended that the post of Deputy Fire Officer and the Fire Officer belong to Group-A Junior Branch and Senior Branch respectively. The post of Assistant Fire Officer is undisputedly a Group-B post. The DPC under Annexure-10 was considering the case of promotion to the post of Fire Officer i.e. Group-A post. Prior to that DPC was convened to consider the case for promotion of Officers to the post of Assistant Fire Officer (Group- B). Furthermore, such promotion to the post of Assistant Fire Officer has not been assailed by anybody. Similarly, the promotion of the petitioner to the post of Deputy Fire Officer (Group-A Junior Branch) has also not been challenged. Therefore, it was emphatically contended that the guidelines of the G.A. Department which is meant for Group-B Officers is not applicable in the instant case as has been argued on behalf of the State Government. 10. A counter affidavit has been filed on behalf of the State-Opposite Party Nos.1 and 2. In the joint counter affidavit filed by Opposite Party Nos.1 and 2, it has been stated that the petitioner had joined in Odisha Fire Service as a Station Officer on 21.02.2000 and thereafter, he was promoted to the post of Assistant Fire Officer w.e.f. 30.08.2011. While // 10 // the petitioner was continuing as Assistant Fire Officer at Sambalpur Fire Station, an adverse remark was communicated to him vide order dated 24.05.2016 by the then Chief Fire Officer, Odisha, Cuttack. The above noted adverse remark was reflected on the Performance Appraisal Report (PAR) of the petitioner due to his negligence in duty i.e. issuance of illegal NOC and further hiding the same in the monthly returns of Government orders and departmental circulars. 11. It is also stated in the counter affidavit that the petitioner submitted representation to the D.G. of Police, Fire Service, Commandant General, Home Guards and Director, Civil Defence, Odisha, Cuttack on 24.10.2016, which is enclosed to the writ application as Annexure-4. The D.G., Fire Service, Odisha, Cuttack considering the representation of the petitioner passed an order on 23.02.2017. The operative part of the said order is extracted herein below:- “The remarks of both the reviewing and the accepting authority are therefore get aside and remarks of the DFO as reporting authority will be treated as the Final CCR of the officer reported upon. The representation of AFO Rangadhar Acharaya is disposed of accordingly. At the same time, Sri Rangadhar Acharaya Officer is advised to be more careful and respectful in his dealings with superior officers and ensure implementation of proper and legal orders passed.” // 11 // On the basis of the aforesaid order passed by the D.G.P., F.S. Odisha, Cuttack, the name of the petitioner was recommended for promotion to the post of Deputy Fire Officer and subsequently the petitioner got promotion to the rank of Deputy Fire Officer, vide Home Department Notification dated 27.06.2017. 12. The counter affidavit of Opposite Party Nos.1 and 2 further reveals that a final gradation list of Deputy Fire Officers in Odisha was published on 27.01.2021 and the same was communicated to each concerned officer including the petitioner. When the vacancies in the rank of Fire Officer was reported, the name of the eligible Officers were short listed and sent to the Government for consideration. Such list includes name of the petitioner along with other eligible officers. The DPC which was considering the promotion of Deputy Fire Officer to the rank of Fire Officer observed as follows:- “There are six sanctioned post of Fire Officer, out of which one post is lying vacant consequent upon promotion of Sri Arun Sarangi to the rank of Chief Fire Officer. Another post will remain vacant soon after retirement of one Sri Ananta Charan Sethi, Fire Officer, in the month of March, 2022. So, altogether two posts will be filled up. The committee perused like CCR, Vigilance all clearance as well as Departmental Promotional cases. It was seen that the two Deputy Fire Officer, namely, Trilok Kumar Babu and Sri Satyapir Behera were found suitable for promotion to the rank of Fire Officer. Besides, the CCR and Other documents of required documents // 12 // one Offer, namely, Sri Rangadhar Acharaya was also examined. As the CCR of the said officer for the year 2014-15 and 2015-16 was below average it was treated as adverse and was decided to keep it in sealed cover till final disposal.” On receipt of the committee’s report, the findings were intimated to the petitioner vide letter dated 11.01.2022 with the observation that “as observed by Government from your CCR folder for the year 2014-15 and 2015-16, it has been recorded as “below average” and the same has been expunged by D.G.P., F.S. Odisha, Cuttack, who is not the competent authority to do so as per guideline of Government and he was advised to submit his representation to Government through proper channel for consideration of adverse CCR.” Pursuant to the aforesaid communication, the petitioner submitted a fresh representation to the D.G. Fire Service, which was received on 24.01.2022. In his representation, the petitioner has requested to move Government for post facto approval of the action of the then D.G.P., Fire Service, Odisha, Cuttack while expunging the adverse remark against the petitioner 2014-15 and 2015-16 and to regularize the matter. While the matter was pending before the Government, this Court had passed an interim order dated 10.03.2022 directing that “the anticipated vacancy against which the Opposite Party No.5 has been recommended shall not be filled up till the next date.” // 13 // 13. The Opposite Party Nos.1 and 2 have emphatically submitted that the petitioner was communicated with adverse remark on his PAR/CCR with a overall grading of “Below Average” by the reviewing authority and accepting authority for the relevant years while he was working as Assistant Fire Officer at Sambalpur Fire Station. It is needless to mention here that the appointing authority of Assistant Fire Officer (Group-B) in Odisha Fire Service is the Government of Odisha. Furthermore, the guideline for recording of PAR of Group-B officers has been published vide G.A. Department memo dated 26.04.2006 Para-2 of the said guideline provides as follows:- “2-The PARs of Group-B Government Officers shall be maintained in concerned Administrative Department/heads of Department (in respect of whom they are appointing authority). The original copy should not be taken away from the Officer having custody of it except when specifically Service required Commission/Union Service Commission/Court.” the Odisha Public Public by From the aforesaid guidelines, it is crystal clear that the Government being the appointing authority is the custodian of PAR/CCR of the petitioner. In other words, the State Government is the final authority of PAR/CCR of Assistant Fire Officers of Odisha Fire Service. It has also been stated in the counter affidavit that the adverse remark against the petitioner should have been expunged by the State // 14 // Government i.e. appointing authority. However in the present case, the adverse remarks were expunged by the then D.G. Fire Service, which is contrary to the guidelines of the Government. Moreover, as per the guideline issued by the Government, the competent authority to deal with the representation of the petitioner against the adverse remark is Secretary of the concerned department. As such, the conduct of the D.G. Fire Service, Odisha in modifying the adverse remark from below to average is in complete violation of the said guidelines and the settled position of law. 14. Learned Additional Government Advocate representing the Government-Opposite Parties submitted that the conduct of the petitioner in submitting representation to the D.G. Fire Services for expunction of adverse remark is an incorrect procedure and the same is also contrary to the guidelines issued by the Government in this regard. He further contended that as per the guideline it is only the Government of Odisha, which is the appointing authority and as such, competent to consider the representation of the petitioner and not the D.G. Fire Service, Odisha as has been done in the case of the petitioner. Learned Additional Government Advocate also contended that the then D.G. Fire Service without taking into consideration the Government guideline of the year 2006 considered the representation of the petitioner and expunged the // 15 // adverse remark mentioned in the PAR/CCR of the petitioner. Accordingly, he also submitted that while considering the promotion from the post of Assistant Fire Officer to the rank of Deputy Fire Officer, the adverse remark in the CCR/PAR of the petitioner were not considered by the DPC for which the petitioner got the opportunity to be promoted to the post of Deputy Fire Officer without any objection by Opposite Party No.1. 15. On a careful reading of the counter affidavit as well as considering the submissions made by learned Additional Government Advocate, this Court observes that the crux of the counter argument and the gist of the counter affidavit filed by the Opposite Party Nos.1 and 2 revolves around one point i.e. the adverse remark against the petitioner in respect of the year 2014-15 and 2015-16 were reviewed and expunged by the D.G. Fire Service, Odisha, Cuttack, which is not permissible under the law and the same is contrary to the guidelines. Moreover, State Government being the appointing authority is the only competent authority to review such adverse remarks on the basis of the representation made by the petitioner and the same having not been followed in the case of the petitioner, the adverse remarks made against the petitioner have been expunged illegally. Thus, learned Additional Government Advocate strenuously argued to justify the finding of the DPC in relation to the petitioner to the // 16 // effect that the CCR of the petitioner in the relevant years was duly average and the same was treated as considered and therefore, it was decided by the DPC to keep it in a sealed cover till final disposal. 16. Referring to the counter affidavit filed by the Opposite Party Nos.1 and 2, learned Additional Government Advocate submitted that the promotion of Deputy Fire Officer to Fire Officer is now governed by the Odisha Fire Service (Method of Recruitment and Condition of Service of Group-A and Group-B officers) Rules, 2021. He further referred to rule 28 of the aforesaid Rules, 2021 which has been extracted herein below:- “28(1) in order to be eligible for promotion to the post of Fire Officer, a Deputy Fire Officer must,- (i) have completed 3(Three) years of qualifying service in the rank of Deputy Fire Officer on the 1st day of January of the year in which the Committee meets; (ii) have passed the Departmental examination in Accounts conducted by the Board of Revenue, Odisha; (iii) have good service record; (iv) be free from vigilance and criminal cases; and (v) must be physically fit and mentally sound.” Referring to the aforesaid rule, learned Additional Government Advocate submitted that since the petitioner was awarded below average remark in his CCR/PAR for the year 2014-15 and 2015-16 and the same by no stretch of imagination can be construed to be good service record of the petitioner. Therefore, the same violates clause-(iii) of Rule 28(i) of // 17 // the Rule 2021. As such, the petitioner does not fulfill the eligibility criteria as laid down in Rule 28 for consideration of his case for promotion to the rank of Fire Officer. Therefore, the officer junior to the petitioner i.e. Opposite Party No.5 was considered to be a suitable candidate to fill up the vacancy created due to retirement of Sri Ananta Charan Sethi, Fire Officer in March, 2022. 17. Having heard learned counsels for the parties and upon perusal of the pleadings of the respective parties as well as upon careful consideration of the materials placed before this Court, this Court is of the view that the issue involved in the present writ application is whether the petitioner was eligible for promotion to the post of Fire Officer and whether his case for promotion has been illegally rejected by the DPC and as to whether the adverse remark that was given against the petitioner for the year 2014-2015 and 2015-2016 would stand on the way of the petitioner while the DPC was convened to consider the cases of otherwise eligible officers to the post of Fire Officer and finally whether the recommendation of DPC to promote the Opposite Party No.5 to the Fire Officer was valid, legal and justified? To answer the aforesaid questions, this Court is required to carefully analysize the contentions raised by learned counsels for the parties be it factual or legal. // 18 // Furthermore, the relief sought for by the petitioner can only be granted if the above noted issues are answered in favour of the petitioner. 18. Mr. J.K. Rath, learned senior counsel appearing on behalf of the petitioner on facts submitted that the petitioner is continuing as Deputy Fire Officer and as such, the petitioner fulfills the required eligibility criteria for being considered by the D.P.C. for promotion to the post of Fire Officer. However, the Opposite Parties have committed a gross illegality by recommending the name of the Opposite Party No.5, who is junior to the petitioner. Mr. Rath, learned senior counsel appearing for the petitioner further contended that Odisha Fire Service Act, 1993 was enacted on 29.12.1993. However, no rules were framed thereunder to regulate the promotion in Odisha Fire Service. On 24.06.2002, the State Government issued a resolution prescribing the criteria for selection and promotion to the rank of Assistant Fire Officer. Accordingly, the DPC recommended the name of the petitioner for promotion from Station Officer to Assistant Fire Officer on 30.08.2011 and that the Opposite Party No.5 was promoted to the post of Assistant Forest Officer against reserved category quota w.e.f. 25.07.2011 and that after the petitioner was promoted to the post of Assistant Forest Officer, his seniority was restored and he was placed above the Opposite Party No.5 as the petitioner’s name appears above the Opposite Party No.5 in the select list // 19 // for the post of Station Officer, which is entry level post for both the petitioner as well as Opposite Party No.5. Accordingly, the final gradation list for the post of Assistant Fire Officer was published on 30.07.2013 showing the petitioner at Sl. No.12 and the Opposite party No.5 at Sl. No.13 in the said final gradation list. 19. Learned senior counsel appearing on behalf of the petitioner further contended that the resolution dated 27.07.1997 provides the criteria for promotion to the post of Deputy Fire Officer and Fire Officer. Further, the said resolution provides that the Assistant Fire Officer, who has completed five years of service and has completed requisite training. As such, he is eligible for promotion to next higher post of Deputy Fire Officer, accordingly, the petitioner was promoted to the rank of Deputy Fire Officer on 27.06.2017 and the Opposite Party No.5 promoted on 25.07.2016 against the reserved category quota. After the petitioner was promoted to the post of Deputy Fire Officer on 27.06.2017 his seniority was again restored and he was placed above the Opposite party No.5. Accordingly, the petitioner was placed against Sl. No.9 and whereas the Opposite Party No.5 was placed at Sl. No.10 of the final gradation list on 27.01.2017. He further contended that since the final gradation list has been published putting the petitioner above the Opposite Party No.5 and // 20 // that such gradation list having not been challenged by the Opposite Party No.5, such gradation list has attained finality. 20. With regard to the next promotion to the post of Fire Officer, Mr. Rath, learned senior counsel appearing for the petitioner contended that DPC meeting was convened on 22.12.2021. He further submitted that by then a rule has been framed by the State Government known as Odisha Fire Service (Method of Recruitment and Condition of Group-A, Group- B Officers) Rules, 2021 and the same came into force w.e.f. 13.08.2021. Referring to Rule 28 of the Rules, 2021, Mr. Rath, learned senior counsel argued that one of the requirement for promotion to the post of Fire Officer is that the Officer must have good service record. Further laying emphasis on Rule 28(2), he also contended that the inter se seniority of the Fire Officer shall be determined according to their position in the approved select list of Deputy Fire Officer. By referring to the aforesaid Rules, learned senior counsel for the petitioner contended that the DPC has not considered the case of the petitioner for promotion to the post of Fire officer in consonance with the aforesaid rules. Therefore, the outcome of the DPC meeting is bad and illegal. While asserting the decision of the DPC, the argument advanced by Mr. Rath, learned senior counsel are two folds. Firstly, the petitioner is having requisite eligibility criteria and in view of the admitted position that the petitioner is senior to // 21 // Opposite Party No.5, the case of the petitioner should have been considered by the DPC in its meeting held on 22.12.2021 under Annexure-10. Secondly, the rejection of the candidature of the petitioner by the DPC in its meeting held on 22.12.02021 on the ground that the CCR of the petitioner for year 2014-2015 and 2015-2016 was below average and hence, the same was treated as adverse, accordingly, the DPC committed an illegality by treating the remarks to be adverse and taking a decision to keep the fate of the petitioner under a sealed cover. 21. While elaborating the 2nd ground, learned senior counsel appearing for the petitioner submitted that although in respect of the year 2014- 2015 and 2015-2016 an entry in CCR of the petitioner with regard to his performance has been recorded as “below average”, however, the same was earlier expunged by the then DGP Fire Service, Odisha, Cuttack. He further submitted that when the case of the petitioner for promotion to the post of Deputy Fire Officer was being considered by the DPC, the aforesaid entries in respect of the year 2014-2015 and 2015-2016 were available before the DPC for consideration. Mr. Rath, also contended that the DPC after considering the aforesaid aspects decided to give promotion to the petitioner to the rank of Deputy Fire Officer. When the DPC was again convened to consider the promotion to the post of Fire Officer from Deputy Fire Officer in the year 2021, it was submitted that // 22 // the DPC relied upon the remarks against the petitioner, in respect of the year 2014-2015 and 2015-2016 out of nowhere, ignoring the fact that such adverse remarks were expunged by the then DGP Fire Service, Odisha, Cuttack. In the said context, Mr. Rath, learned senior counsel appearing on behalf of the petitioner further submitted that it was done intentionally to prevent the petitioner from getting promotion to the next higher post i.e. Fire Officer. 22. In the context of the adverse entries in the CCR for the year 2014- 2015 and 2015-2016, Mr. Rath, learned senior counsel for the petitioner contended that said adverse entries were never communicated to the petitioner. When the petitioner came to know about the said adverse entries, he had represented before the DGP Fire Service, Odisha, Cuttack, who after considering the representation of the petitioner was pleased to expunge such adverse remarks. Thereafter, the petitioner was given promotion to the post of Deputy Fire Officer. Mr. Rath, further submitted that the petitioner received communication dated 11.01.2022 under Annexure-11 wherein the petitioner has been given an intimation by the Chief Fire Officer that it was observed by the Government that from the CCR folder of the petitioner of the year 2014-2015 and 2015-2016 that the petitioner has been given a remark “below average” and that such below average remark has been expunged by the DGP, Odisha, Cuttack, // 23 // who is not the competent authority to do so as per guideline of the G.A. Department. Therefore, the petitioner was advised to submit a fresh representation to the Government through proper channel for consideration of adverse entries in the CCR in respect of the above mentioned periods. It was emphatically argued by Mr. Rath, learned senior counsel for the petitioner that the communication dated 11.01.2022 under Annexure-11 is an afterthought and such intimation was given to the petitioner after the DPC meeting was held on 21.12.2021. In such view of the matter, learned senior counsel for the petitioner submitted that the Opposite Parties have not accepted the expunction of the adverse remarks and only with the intention not to give promotion to the petitioner to the rank of Deputy Fire Officer. He further contended that the communication under Annexure-11 dated 11.01.2022 is an outcome of malafide and vindictive attitude of the Opposite Parties towards the petitioner as such the same is unsustainable in law. 23. Next, Mr. Rath, learned senior counsel appearing on behalf of the petitioner also argued that since the remarks in the CCR have not been communicated to the petitioner, the same cannot be used against the petitioner treating such remarks as adverse remarks in the CCR in view of the law laid down by the Hon’ble Supreme Court in a catena of judgments. He further submitted that un-communicated adverse entries in // 24 // the CCR cannot be looked into by the DPC while considering the case of promotion of an officer to the next higher post. Moreover, such entries were in existence when the last promotion of the petitioner was recommended by the DPC and the DPC never considered such adverse entries while considering the case of the petitioner to the post of Deputy Fire officer. It was also argued that since the same was not considered by the last DPC, it is presumed that the same is wiped out from the record so far as the petitioner is concerned. Furthermore, the subsequent DPC is estopped to look into and consider such entries which were not considered by the earlier DPC. 24. In reply to the State’s counter affidavit and the arguments made by learned Additional Government Advocate referring to Annexure-A/2 i.e. guidelines of the G.A. Department relating to recording of PAR of the Group-B Officers of the State Government, learned senior counsel appearing for the petitioner would argue that the post of Fire Officer being a Group-A post, the guidelines under Annexure-A/2 relied upon by the learned Additional Government Advocate is not application to the facts of the petitioner’s case. Therefore, he submitted that the argument of learned Additional Government Advocate is to be outrightly rejected. 25. Learned Additional Government Advocate has filed a written note of submissions. Perused such written note of submissions. At the outset, // 25 // learned Additional Government Advocate has raised question of maintainability of the writ application. He further submitted that in the present case, no final decision has been taken and it cannot be presumed that the petitioner is a person aggrieved and as such, the writ application at the instance of the petitioner is not maintainable. Next, learned Additional Government Advocate has also questioned the jurisdiction of this Court to review the matter when the materials considered by the DPC is genuine and that the recommendation of the DPC is based on materials on record and sound reasoning. 26. Mr. Tripathy, learned Additional Government Advocate contended that the adverse entries were communicated to the petitioner within a reasonable time, however, the same was expunged by an incompetent authority. Thus, such expunction is non-est in the eye of law. He further submitted that since the expunction is by incompetent authority and that the same is non-est in the eye of law, the adverse entries against the petitioner continues on record and that the DPC has rightly considered the said entries while considering the case of the petitioner for promotion. While admitting the fact that the petitioner was given promotion by the last DPC. While adverse entries were existing against the petitioner, he also contended that such adverse entries have not lost sting. Accordingly, learned Additional Government Advocate contended // 26 // before this Court that the DPC has not committed any illegality by taking into consideration the adverse entries in question while considering the case of the petitioner for promotion and thereafter taking a final decision as per Annexure-10 to the writ application. 27. Next, it was argued by learned Additional Government Advocate that the current DPC has rectified the mistake of the last DPC by considering the adverse entries against the petitioner. He further submitted by referring to the Rules, 2021 that the service means Odisha Fire Service as defined under Rule 2(i) and that such service includes both Group-A and Group-B posts. He further contended that requirement of “good service record” as mentioned in the rules cannot be restricted to the portion of qualifying service or for the period of qualifying service, which has been prescribed distinctly in respect of the various posts to be filled up by way of promotion. In the aforesaid context, learned Additional Government Advocate by referring to the rules elaborated the qualifying service period and the eligibility condition in respect of various posts under 2021 Rules. Learned Additional Government Advocate advanced the argument before this Court by arguing that the petitioner has not been communicated with the adverse entries and pursuant to such communication, the petitioner having made a representation for expunction of such adverse entries, the argument // 27 // advanced on behalf of the petitioner that he was not communicated with the adverse entries is untenable in law. Moreover, he has also argued that once it was communicated to the petitioner that the expunction is by an incompetent authority, the petitioner sought for post facto approval of such order by expunging the adverse remarks by a competent authority. In essence, learned Additional Government Advocate argued that the petitioner having been communicated with such remarks and that the petitioner having submitted a representation for expunction of such adverse remarks, the petitioner cannot take the ground that he has not been communication with such adverse remarks at a belated stage. Finally, learned Additional Government Advocate submitted that the element of the public interest involved in the selection process and appointment of Fire Officer is of paramount importance and in such view of the matter giving permission to an officer having adverse entries would affect the efficiency of the administrative machinery. 28. Mr. S.K. Dash, learned counsel appearing for the private Opposite Party No.5 has also filed a written note of submissions. Although Opposite Party No.5 have no role either in DPC or in selection and appointment of the Officers to the post of Fire Officer, however, since he is a beneficiary of the decision of the DPC under Annexure-10, this Court deems it proper to consider the contentions raised by learned counsel // 28 // appearing for the private Opposite Party No.5. In the said context, learned counsel appearing for the Opposite Party No.5 referred to the judgment of the Hon’ble Supreme Court in the case of Lakhi Ram vrs. State of Haryana and others : reported in AIR 1981 SC 1655 wherein Hon’ble Supreme Court of India has held that a co-employee can raise the question of validity of expunction of adverse entries as a incidental issue on the analogy that it would improve a chance of the co-employee. Further in the very same judgment while considering the locus standi of the co-employee in questioning the expungment of adverse remarks in the CCR of another employee, it was held that such co-employee has locus standi to maintain a writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to approach
Decision
by filing the writ petition. In such view of the matter, this Court has no hesitation in coming to conclusion that the Opposite Party No.5 has locus standi to raise the issue of expunction of adverse remarks by an incompetent authority and accordingly proceeds to consider the argument advanced on behalf of the Opposite Party No.5. 29. The substance of the argument advanced by learned counsel appearing for the Opposite Party No.5 is that the petitioner has not challenged the correctness or propriety of the adverse entries in his CCR/PAR for the relevant period. Further, he has referred to the // 29 // communication dated 11.01.2022 under Annexure-11 and submitted that the petitioner has also not challenged the said communication under Annexures-10 and 11 and the same would reveal that the petitioner has accepted the decision that the adverse entries for the year 2014-2015 and 2015-2016 by the Opposite Party No.2, which was without authority. He further contended that the said adverse entries were communicated to the petitioner on 14.04.2015 and 24.05.2015 respectively with an intimation that he may represent against the said entries within 45 days from the date of receipt of such communications. Although the petitioner has submitted his representation pursuant to the aforesaid communication, the Opposite Party No.2 having no authority to consider such representation, has illegally passed orders under Annexures-5 and 6 to the writ petition. He further contended that such representation having been considered and orders having been passed as per Annexures-5 and 6 by an incompetent authority, such orders are nullity in the eye of law. It was also contended that the petitioner has not disputed the fact that the Opposite Party No.2 is not the competent authority in this case. On the contrary, the demand of the petitioner that orders passed by the Opposite Party No.2 be sent to the Government for post facto approval is unsustainable in law. With regard to the applicability of the doctrine of the promissory esttopel to the facts of the present case, it was argued by // 30 // learned counsel for the Opposite Party No.5 that it is a settled position of law that there can be no estoppels against the law. Particularly when the rights of the parties are to be decided in the light of statutory rules or guidelines and in the said context, learned counsel for the Opposite Party No.5 relied upon a judgment of the Hon’ble Supreme Court in the case of Anil Joshi and others vrs. State of Himachal Pradesh and others : reported in (2015) 12 SCC 669. Similarly, reliance was also placed on behalf of the Opposite Party No.5 on the ratio laid down by the Hon’ble Supreme Court in the case of Chandigarh Administration and others vrs. Naurang Singh and others : reported in (1997) 4 SCC 177 to impress upon this Court that mistake committed by the Administration cannot furnish a valid or legitimate grounds for the Court or the Tribunal to direct the Administration to go on repeating the same mistake. 30. Additionally, in the context of the authority of Opposite Party No.2 to consider the representation of the petitioner and to expunge the adverse entries in CCR/PAR of the petitioner, learned counsel for the Opposite Party No.5 submitted that learned Additional Government Advocate pursuant to the direction of this Court has categorically stated in the counter affidavit of the State that the Opposite Party No.2 has no authority to expunge such adverse remark and such power vests in the Government as per guideline of the G.A. Department. He further referred // 31 // to the judgment of the Hon’ble Supreme Court in the matter of Union of India(UOI) and others vrs. S.K. Goel and others : report in AIR 2007 SC 1199. With regard to the extent of judicial interference by this Court in the decision taken by the DPC, although learned counsel for the Opposite Party No.5 has extensively quoted paragraphs-20, 21 and 22 in his note of submission, however, this Court for the sake of brevity deems it proper not to extract the same here. He also referred to the judgment of Hon’ble Supreme Court in the case of Union Public Service Commission vrs. L.P. Tiwari and others, reported in 2006(12) SCALE 278 to draw an outline on the scope and jurisdiction of this Court to interfere with a decision taken by the DPC and ultimately submitted that the Hon’ble Supreme Court after analyzing the fact, eventually held that the evaluation made by an expert committee should not be interfered with by the Court, which did not have expertise to undertake the exercise i.e. necessary for such purpose and finally held that the DPC enjoys full discretion to devise method and procedure for objective assessment of suitability on merits of the candidates being considered by it. Hence, the interference by the High Court is not called for. 31. Learned counsel for the Opposite Party No.5 also argued with regard to maintainability of the writ petition. In course of his argument, learned counsel for the Opposite Party No.5 relied upon the judgment in // 32 // the case of Union of India and others vrs. Kunisetty Satyanarayana : report in AIR 2007 SC 906. Similarly, he also relied upon a number of judgments to impress upon this Court that ordinarily writ does not lie against a charge-sheet or show-cause. This Court upon perusal of such judgments is of the considered view that such judgments are distinguishable on its facts and as such, the ratio laid down therein are not applicable to the facts of the present case. 32. After hearing learned counsel for the parties, and upon a careful consideration of the contentions raised by the counsels appearing for the respective parties, this Court would now proceed to analyze the factual as well as the legal position involved in the present lis. At this juncture it would be fruitful to reiterate that the present writ application has been filed by the petitioner with a prayer to quash the recommendation made by the DPC in favour of the Opposite Party No.5 under Annexure-10 for promotion to the post of Fire Officer and further for a direction to the Opposite Party No.1 to constitute a review DPC so as to consider the case of the petitioner for the post of Fire Officer taking into consideration the CCR/PAR of the petitioner pertaining to the qualifying period as Deputy Fire Officer for promotion to the post of Fire Officer and further by taking into consideration the fact that the adverse entries against the petitioner have been expunged by the Opposite Party No.2 // 33 // and thereby not to consider such communication made by Opposite Party No.4. 33. On a careful examination of the facts of the case, this Court, at the outset, would like to observe that it is not clear from the pleadings as well as materials placed before this Court as to whether the post of Fire Officer to which the recommendation has been made by the DPC under Annexure-10 is a reserved category post and the same belongs to UR category. Such determination has relevance so far the present case is concerned. Admittedly, the petitioner belongs to UR category and the Opposite Party No.5 belongs to the SC category. Furthermore, the undisputed facts leading to filing of the present writ application, as culled out from the pleading of the parties, are that both the petitioner and the Opposite Party No.5 were appointed as Station Officer on 21.02.2000 on being duly selected. However, in the select list, the petitioner was placed above Opposite Party No.5. Thereafter, the Opposite Party No.5 was promoted against the reserved category post of Assistant Fire Officer w.e.f. 25.07.2011 whereas the petitioner was promoted to the Assistant Fire Officer under UR category w.e.f. 30.08.2011. It is also admitted position that although the petitioner got promotion to the post of Assistant Fire Officer after the Opposite Party No.5, however, in the final gradation list his seniority was restored and // 34 // he was placed above the Opposite Party No.5. Again, the DPC recommended the Opposite Party No.5 for promotion to the Deputy Fire Officer against the reserved category post w.e.f. 03.08.2013, whereas the petitioner was recommended by the DPC for promotion to Deputy Fire Officer UR category w.e.f. 10.07.2017. Although the Opposite Party No.5 was promoted earlier, however, seniority of the petitioner was restored and he was placed above the Opposite Party No.5. It is apt to mention here that the final gradation list published by the Opposite Parties has not been challenged and the same has attained finality. 34. While the above was the position, the DPC was again convened in the year 2021 to consider the promotion of Deputy Fire Officer to the rank of Fire Officers. By then 2021 Rules was in force. The DPC in its meeting held on 22.12.2021 decided to recommend the names of two Deputy Fire Officers, namely, Trilok Kumar Babu and Satyapir Behera to the post of Fire Officer. Besides, the DPC also considered the CCR and other documents of the petitioner in its recommendation under Annexure-10. The DPC observed that the CCR of the petitioner for the year 2014-2015 and 2015 to 2016 was “below average” and as such, the same was treated as adverse and it was further decided to keep it in sealed cover till final disposal. // 35 // 35. So far the adverse entries in the CCR/PAR of the petitioner for the year 2014-2015 and 2015 to 2016 are concerned, it was observed by this Court on a scrutiny of the record that certain adverse remarks were made against the petitioner, which were confirmed by the accepting and reviewing authorities. Thereafter, such remark was although communicated to the petitioner, the petitioner made a representation to the Opposite Party No.2. The Opposite Party No.2 vide order under Annexure-5 and 6 dated 23.02.2017 and 21.12.2016 expunged / varied such remarks. Thereafter the DPC which was convened to consider the promotion to the post of Deputy Fire Officer from Assistant Fire Officer to consider the case of the petitioner and vide notification dated 27.06.2017 under Annexure-7, the petitioner was promoted to the rank of Deputy Fire Officer (Group-A) along with two other officers, namely, Bichitra Kumar Panda and Trilok Kumar Babu. While the matter stood thus, the final gradation list was published on 01.01.2020 for the post of Deputy Fire Officer. Such final gradation list under Annexure-8 reveals that the petitioner was placed at the Sl.No.9, whereas the Opposite Party No.5 has been placed at Sl. No.10. Undisputedly, such gradation list has not been challenged by any of the parties, therefore, the same has attained finality. Basing upon such gradation list, the DPC meeting which was convened on 22.12.2021 considered the case of the Deputy // 36 // Fire Officer for promotion to the post of Fire Officer and accordingly, made its recommendation vide Annexure-10. 36. On careful analysis, this Court observed that after the DPC recommendation on 22.12.2021 under Annexure-10, a communication has been issued to the petitioner on 11.01.2022 under Annexure-11 intimating the petitioner that it has been observed by the Government from his CCR folder for the year 2014-2015 and 2015-2016, contains a remark as “below average” and the same has been expunged by DGP, Fire Service, Orissa, Cuttack, who is not the competent authority to do so as per the guideline of the G.A. Department. Such communication also reveals that the petitioner was advised to submit a fresh representation to the Government through proper channel for consideration of adverse entries in the CCR for the above mentioned periods. Such communication has been issued with the approval of the DGP Fire Service. 37. Considering the aforesaid facts, this Court is of the view that the departmental authorities have not considered the representation of the petitioner against adverse remarks in its proper perspective. This Court on further analysis of the facts would proceed by accepting that the remarks made in the CCR/PAR of the petitioner for the relevant years are adverse in nature. Further, accepting the fact that such adverse // 37 // remarks were communicated to the petitioner in the year 2016 itself and on such communication, the petitioner submitted representations on 04.06.2016 and 24.10.2016 respectively under Annexures-3 and 4 to the writ application before the Opposite Party No.2, the Opposite Party No.2, after considering the representation, took a decision to expunge / modify the remarks which were communicated to the petitioner under Annexures-5 and 6 to the writ application. Now, therefore, the question arises as to whether the Opposite Party No.2 was competent to consider the representation of the petitioner to expunge/modify the adverse remarks made against the petitioner. 38. To answer the question formulated in the preceding paragraph, it would be fruitful to refer to the memo dated 26.04.2006 of the G.A. Department of the Government of Odisha. The said memo dated 24.06.2016 filed as Annexure-A/2 to the counter affidavit of the State lays down the guidelines for recording of the performance appraisal report of Group-B Officers of State Government. Mr. Rath, learned senior counsel appearing on behalf of the petitioner contended that such guidelines are meant for the Group-B Officer and that the post of Fire Officer being a Group-A post, the guideline vide memo dated 24.06.2006 under Annexure-A/2 is not applicable to the facts of the present case. Such argument advanced by the learned senior counsel for // 38 // the petitioner has some subsistence in it. Even assuming that the said guideline under Annexure-A/2 is applicable to the petitioner, it is observed from the said guidelines that Clause-13 provides that the adverse remarks should be communicated to the petitioner signed by the officer authorized by the concerned Department/Heads of the Department. Further, Clause-14 of the said guidelines under Annexure- A/2 provides that the petitioner shall get an opportunity to submit a representation against the adverse remarks which should be cleared concise and precise and written in a temperate language. The said clause further provides that the true copies of the representation addressed to the authority, who is competent to dispose of the representation be furnished within 45 days on receipt of such communication. Such guidelines issued by the G.A. Department is a complete code by itself. Clause-16 of the said guidelines provides that the competent authority to deal with the representation against the adverse remarks will be Secretary of the concerned department and in case such adverse remarks are given by the Secretary, then the Chief Secretary will be the competent authority to deal with the representation. 39. Keeping in view the provisions of guidelines under Annexure-A/2 to the counter affidavit and presuming the same is applicable to the case of the petitioner, this Court examined the Annexure-3 i.e. adverse remark // 39 // dated 24.05.2016, stated to have been communicated to the petitioner. Annexure-2 further reveals that the petitioner was informed about the fact that he can make a representation against such the adverse remarks, however, within 45 days of the communication of the adverse remarks. This Court also observed that the communication under Annexure-2 does not specifically mention, who is the competent authority. Further pursuant to Annexure-2, the petitioner has submitted two representations under Annexures-3 and 4 to the DGP of Fire Service the incumbent of Opposite Party No.2 office. After considering the representation of the petitioner, the Opposite Party No.2 was pleased to expunge/modify the adverse remarks against the petitioner vide communication under Annexures-5 and 6. Since the competent authority has not been mentioned in the letter under Annexure-2, the petitioner submitted his representation before the Opposite Party No.2 i.e. DGP of Fire Service, Odisha. In such view of the matter, this Court is of the considered view that the petitioner has not committed any illegality by submitting the representation before the Opposite Party No.2 in absence of any specific intimation with regard to the competent authority under Annexure-2. Further, if the Opposite Party No.2 was not the competent authority, then he should have forwarded the representation to the Government keeping in view Clause-16 of the guideline under Annexure-A/2. Instead of doing // 40 // that, the Opposite Party No.2 himself considered the representation and decided to expunge the remarks. Therefore, this Court is also of the view that the petitioner cannot be blamed for the same. However, even accepting the contentions raised by learned Additional Government Advocate that the guidelines under Annexure-A/2 to the counter is applicable to the facts of the present case, the case of the petitioner has not been considered by the competent authority till date, although the petitioner had submitted his representations under Annexures-3 and 4. Furthermore, there was no need to issue another communication to the petitioner after the DPC took a final decision under Annexure-10. Once the petitioner has submitted his representations under Annexures-3 and 4, there was no need to issue letter dated 11.01.2022 under Annexure-11. However, the fact remains that the representation of the petitioner which is required to be filed by the petitioner and considered by the competent authority as per the guidelines of the G.A. Department under Annexure- A/2 has not been considered by the competent authority as provided in Clause-16 of the said guidelines till date. 40. In such view of the matter, it is not open to the Opposite Parties to blow hot and cold simultaneously and take a stand in the matter that since the authorities have already given opportunity to the petitioner, they are no more required to give any further opportunity to the // 41 // petitioner and that the representations of the petitioner having been allowed and the adverse remarks having been expunged/modified by an incompetent authority the same is valid in law. Be that as it may, this Court has no hesitation in coming to a conclusion that the entries made in the CCR of the petitioner in respect of the year 2014-2015 and 2015- 2016 are adverse in nature. Such finding of this Court is supported by the conclusion of the DPC under Annexure-10 where the DPC has categorically come to a conclusion that the remark against the petitioner for the year 2014-2015 and 2015-2016 was “below average” and the same was treated to be adverse in nature. So far adverse entries in the CCR of an employee is concerned, the Hon’ble Supreme Court in the case of U.P. Jal Nigam and others vrs. Prabhat Chanda Jain and others : reported in (1996) SCC (L&S) 519 has held that in a case of extreme variation in gradation such as “outstanding” gradation in one year followed by “satisfactory” in the succeeding year was held to be reflective of an adverse element compulsorily communicable. It was further held in such decision that reasons for such must be recorded in the personal file and the employee must be informed of the change in the form of advice. Otherwise, such downgrading is unsustainable in law. In the said judgment, the Hon’ble Supreme Court went to the extent of observing that even positive confidential entry in a given case can // 42 // perilously be adverse and to say that adverse entry should always be qualitatively damaging may not be true. 41. Similarly, the Hon’ble Supreme Court in the case of Abhijit Ghosh Dastidar vrs. Union of India and others in Special Leave to Appeal (Civil) No(s).26556 of 2004 vide judgment dated 22.10.2008 in paragraph-4 of the judgment has expressed that although a benchmark “very good” is required for being considered for promotion, admittedly the entry of “good” was not communicated to the appellant. The entry of “good” should have been communicated to him as he was having “very good” in the previous year. Therefore, it was finally opined by the Hon’ble Supreme Court that non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police any other service (other than the armed forces), it has civil consequences because the same affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violation of Article 14 of the Constitution. In coming to such a conclusion and while holding that the entries “good” if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade, the Hon’ble Supreme Court had also referred to the judgment in the case of Dev Dutt vrs. Union of India and others : reported in AIR 2008 (7) Scale 403. // 43 // 42. Next, this Court would also like to refer the judgment in the case of Sukhdev Singh vrs. Union of India and others in Civil Appeal No.5892 of 2006 decided on 23.04.2013. In Sukhdev Singh case (supra), Hon’ble Supreme Court while referring to the judgment in Dev Dutt case (supra), Abhijit Ghosh Dastidar case(supra) has come to a conclusion that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is a legally sound principle and help in achieving three fold objectives. (i) First, the communication of every entry in the ACR to a public servant helps him/her to work harder to achieve more that helps him/her in improving his/her work and give better results. (ii) Second, on being aware of the entry in ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. (iii) Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. 43. Finally, the Hon’ble Apex Court held that every entry in ACR poor, fair, average, good or very good must be communicated to him or her within a reasonable period. Further in the said judgment, while referring to the judgment in the case of Satya Narain Shukla vrs. Union of India and others and K.M. Mishra vrs. Central Bank of India and // 44 // others, the Hon’ble Apex Court observed that the views in the said two judgments are contrary to the consistent views. Accordingly, it was declared the same is not laying down a good law. The Hon’ble Supreme Court of India was again considering the similar issue in Dev Dutt vrs. Union of India and others : reported in AIR 2008 SC 2513. In the said judgment, it was categorically held by the Hon’ble Supreme Court that the communication to be made to the employee concerned, shall not be confined to adverse entry only. Rather the employee concern should be communicated with every entry likely to be made in ACR/CCR/PAR. It was also observed that the fairness and transparency in public administration requires that all entries whether poor, fair, average, good or very good in the ACR of a public servant whether in civil, judicial, police or any other State service must be communicated to him / her within a reasonable period so that he/ she can make a representation for its upgradation and the only exception to such rule in military service. In the said judgment, it was also observed that nomenclature of the entry is not relevant, it is the effect which the entries having that will determine whether it is an adverse entry or not. 44. Thus, the rigours of the entry, which is important, not the phraseology with regard to “good” entry in ACR it was observed in Dev Dutt case (supra) that such an entry is of no satisfaction to the incumbent // 45 // if it in fact makes him ineligible for promotion or has an adverse effect on his chances and as such, communication of entries and giving opportunity to make a representation against such entries is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion and even a single entry can destroy the career of an officer, which has otherwise been outstanding throughout. 45. Further, it was observed in the above noted pronouncement that the same often results in grave injustice and heart-burning, and may shatter the morale of many good officers, who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. Eventually, the Hon’ble Supreme Court directed that the “good” entry be communicated to the appellant within a period of two months. If on representation made by the appellant his entry is upgraded, the appellant shall be considered for promotion retrospectively by the DPC. Since the appellant has retired, he will get benefit of higher pension and the balance of arrears of pay along with 8% per annum interest. In the context of the present case, this Court would like to refer to two paragraphs, namely, Para Nos.10 and 12 in Dev Dutt case (supra) and the same are extracted herein below:- xxx xxx xxx xxx // 46 // “10. In the present case the bench-mark (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. 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. xxx xxx xxx xxx 12. Learned counsel for the respondent submitted that under the Office Memorandum 21011/4/87 [Estt. ‘A’] issued by the Ministry of Personnel/Public Grievance and Pensions dated 10/11.09.1987, only and adverse entry is to be communicated to the concerned employee. It is well settled that no rule or government instruction can violate Article 14 or any other provision of the Constitution, as the Constitution is the highest law of the land. The aforesaid Office Memorandum, if it is interpreted to mean that only adverse entries are to be communicated to the concerned employee and not other entries, would in our opinion become arbitrary and hence illegal being violative of Article-14. All similar Rules/Government Orders/Office Memoranda, in respect of all services under the State, whether civil, judicial, police, or other service (except the military), will hence also be illegal and are therefore liable to be ignored.” xxx xxx xxx xxx 46. The analysis of law would remain incomplete, if this Court does not refer to the judgment of the Hon’ble Supreme Court in the case of Union of India and others vrs G.R. Meghwal in Civil Appeal No.2021 // 47 // of 2022. In the case of G.R. Meghwal (supra), the Hon’ble Supreme Court was considering the identical issue. The officer involved in the said case was having “very good” remark in the ACRs for the year 2005- 2006 and 2006-2007 and was graded only “good” in the ACR for the 2007-2008 by the very same Reporting Officer, despite the fact that specifically the respondent was given opportunity to represent against the ACR for the year 2007-2008. After discussing the facts of the case in detail and analyzing the law including the judgments referred to hereinabove, the Hon’ble Supreme Court finally held that no valid reasons are given for rejecting the representation and as such, their Lordship’s were of the opinion that in view of the facts and circumstance of the said case, learned Tribunal and the High Court have not committed any error in directing the department to call for the review meeting of the Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG and while doing so to exclude the ACR for the year 2007-2008. Finally, the Civil Appeal was dismissed and the judgments delivered by the Tribunal as well as High Court were affirmed by the Hon’ble Supreme Court. 47. Reverting back to the facts of the present case, it is clear that adverse entries were made in the CCR/PAR of the petitioner in respect of the year 2014-2015 and 2015-2016. Although said adverse remarks // 48 // were communicated to the petitioner and he submitted his representations against such adverse remarks, the DGP Fire Service- Opposite Party No.2. After considering the representation of the petitioner was pleased to modify/vary the adverse remarks in the CCR of the petitioner. However, the conduct of the Opposite Party No.2 in expunging the remarks has been challenged on the ground that he had no authority to do so. In the aforesaid factual background, this Court is of the considered view that when the DGP Fire Service was not aware of the position as to who is supposed to consider the representation of the petitioner, therefore, the petitioner cannot be blamed and penalized for the conduct of the Opposite Party No.2. Furthermore, even accepting the argument of the Opposite Parties that it is the Government of Odisha and not the DGP of Fire Service, who is the competent authority to consider the representation of the petitioner against the adverse remarks, then the net result would be that the representations of the petitioner has not been considered as of now. It is needless to mention here that in view of the guidelines and presuming that the same are applicable to petitioner’s case, the DGP of Fire Service after receiving the representations should have forwarded the representations of the petitioner to the Government for consideration. However, the same has not been followed in the present case. // 49 // 48. After a detailed discussion of the factual back ground of the present case and upon analysis of law governing the case particularly the judgments in Dev Dutt case (supra), in G.R. Meghwal case (supra) and in Abhijit Ghosh Dastidar case(supra), this Court is of the considered view that non-consideration of the petitioner’s case by the DPC on the ground that there are adverse remarks against the petitioner as has been stated in Annexure-10, this Court is of the considered view that the same not only affects the petitioner adversely, but such conduct of the DPC has also affected the petitioner’s right as guaranteed under Articles 14 and 16 of the Constitution of India. Therefore, this Court has no hesitation in quashing Annexure-10 to the writ application and accordingly, the same is hereby quashed. Further, the Opposite Parties are directed to convene a review DPC meeting to consider the promotion of the Deputy Fire Officer to the post of Fire Officer within a period of one month from today. The review DPC, so convened, shall consider the case of the petitioner along with other eligible officers including the Opposite Party No.5 for promotion to the post of Fire Officer keeping in view the vacancy position. It is further directed that the aforesaid review DPC shall consider the case of the petitioner by not taking into consideration the CCRs/PARs of the petitioner in respect of the year 2014-2015 and 2015-2016. Although there is no specific mention in the // 50 // rules as to how many years CCR is to be considered while considering the promotion of Deputy Fire Officer to the post of Fire Officer, this Court grants liberty to the review DPC to consider the CCRs of the petitioner for two years immediately preceding the year 2014-2015 and 2015-2016. 49. The writ application is allowed accordingly. However, there shall be no order as to cost. Judge ( A.K. Mohapatra ) Orissa High Court, Cuttack The 31st of March, 2023/ Jagabandhu.