The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11965 of 2015 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Ghanashyam Patra …. Petitioner(s) -versus- Odisha Power Transmission Corporation Ltd., Bhubaneswar &Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. M.C. Jena, Adv. Smt. S. Patnaik, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-13.05.2024 DATE OF JUDGMENT: -31.07.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner, through this Writ Petition, seeks to challenge the action of the Opposite Parties in denying promotion to him on the wrong interpretation of the grading (treating ‘average’ as ‘adverse’) given to him in the Executive Performance Appraisal Report (“EPAR”) for the year 2011-12. I. FACTUAL MATRIX OF THE CASE:
Legal Reasoning
2. The brief facts of the case are as follows: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 1 of 13 (i) The petitioner is a telecom engineer in OPTCL. He was posted at Bhanjanagar in the rank of S.D.O. (Dy. Manager) from the year 2006 to 2014. (ii) While working so, he received a letter No.AWC-III-1/12/54 dated 06.08.2012 from opposite party no.2, where in some adverse remarks were indicated and he was instructed to file his representation with in a stipulated time. (iii) The petitioner submitted his reply stating all the reasons and specifically stated that the remarks in the aforementioned letter are not actually ‘adverse remarks’ but those are personal remarks of reporting officer which was rejected vide letter dated 14.11.2012. Due to the said remarks, the petitioner was not promoted. (iv) Aggrieved by the said order letter dated 14.11.2012, the petitioner approached this court filing a case vide WP(C) No.14491/2014, which was disposed of with a direction to consider the case of petitioner. So the petitioner again sent his representation to his higher authority, wherein a similar order was passed vide letter No.AWC-III-I/2012/9325 dated 10.04.2015; dismissing the representation of the petitioner. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) While issuing letter dated 06.08.2012, the Opposite Parties have not followed their own guidelines as mentioned in their circular no.4038 paragraph 10(5). The opposite party has also admitted this fact in their counter that the remarks made by the reporting officer in the blocks Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 meant for stating adverse remarks and remarks outside the said blocks should not be considered as adverse remarks. In this case, it will be seen from ‘Remarks of the Reporting Officer’, the remarks are not made by the reporting officer in the specific blocks meant for adverse remarks. (ii) It should not be considered the said remarks of reporting officer as adverse remarks and it is his personal opinion. Considering the said comments of the reporting officer are adverse remarks is only non- application of mind of the reviewing officer, who stated his opinion that "I agree with the adverse remarks of the reporting officer----". (iii) The reporting officer has given 7.2 marks to the Petitioner and while reappraisal of the EPAR by the reviewing officer; he enhanced the gradation to 9.5. In case the performance of the petitioner is unsatisfactory and contains some adverse remarks, the reviewing officer, his marks should not have been enhanced from 7.2 to 9.5. (iv) It is further evident from the guideline of the opposite party for promotion of employee, the criteria for promotion of an employee is merit-cum-suitability with due regard to seniority.It is further indicated in the promotion rule of employee of opposite party is that, “Suitability for promotion shall be on basis of Annual Appraisal Performance Report.” It will be seen from the counter that the opposite party has not stated that the petitioner has not satisfied with the other criteria in his service but they have stated that the petitioner’s performance was not satisfactory and not considered only for some alleged adverse remarks. (v) It is pertinent to mention here that, even if presuming but not assuming that the remarks in letter dated 06.08.2012 are adverse remarks, the Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 opposite party has not followed their own guidelines while issuing such remarks which amounts to violation of principle of natural justice and the remarks are liable to be set aside and the petitioner’s case should be considered for promotion. (vi) It is further submitted by the petitioner that the order passed in letter dated 14.11.2012 and 10.04.2015 are made without assigning any reasons which also amounts to violation of principle of natural justice. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. Learned counsel for the Opposite Parties made the following submissions in support of his contentions: (i).
Decision
The Writ petition is devoid of any merit and is liable to be dismissed in as much as the remark in EPAR has been duly communicated and the representation of the Petitioner has been duly considered in accordance with its own merits and that the Petitioner is not eligible to get promotions as per the promotion policy of the Opp. Parties being EPAR of the Petitioner in the preceding year is average and that the junior alleged to have been promoted has not been made. (ii). The reporting officer of the Petitioner, while rating as average in the EPAR for the year 2011-12, has made some adverse comments on the performance of the Petitioner. But the same was not entered in the box meant for entering adverse comments in the booklet. The reviewing officer has given his comments in the adverse space agreeing with adverse remarks given by the reporting authority and rated the Petitioner average. The same was accepted by the accepting authority in Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 the EPA report. The said remark was communicated to the Petitioner vide letter dated 06.08.2012 calling upon the Petitioner to make representation and the representation was duly considered by the competent authority at all stages but no merit was found. (iii). The reporting officer, while rating the performance of the Petitioner as average, has made some adverse comments such as absent at site and no control over the staffs etc. The Reviewing Officer while agreeing with remarks given by the reporting officer has made comment in the adverse space agreeing with the comments given by the reporting officer thereby it was treated as adverse comments. As per this Office Circular No.4038 dated 13.03.2007, adverse remarks will be treated as counter balanced only if the Reviewing Authority or the Accepting Authority Specifically indicates that he/she does not agree with the author of Adverse Remarks. In case of the petitioner, the Reviewing Authority agreed with the comments given by the Reporting Authority. Moreover the Accepting Authority did not counter balance the comments in the "Adverse Box given by the Reviewing Authority. Hence the comments were treated as Adverse and duly communicated to the Petitioner. (iv). The representation of the Petitioner was duly considered by Director (Engineering) who, having found no merit on the entries in the CCR recorded in the EPAR for the year 2011-12 was allowed to stand vide letter dated 14.11.12. The Opp. Party No.2 has also duly considered the representation of the Petitioner in obedience to the order of this Court passed in W.P.(C) No.14491 of 2014 and disposed of the same with the Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 reasons holding that there is no extenuating circumstances to revisit the decision which was communicated to the Petitioner vide letter dated 10.04.2015. As such the Petitioner has been given due opportunity on the matter of entries in CCR as per the Service Regulation and as per the order of this Court. Hence, the order is based on the evidence on record and there is no ground to interfere with the findings of the competent authority in the matter of recording in EPAR of the Petitioner, in as much as this Court lacks jurisdiction to assess the performance of an employee. (v). The EPAR of the petitioner for the year 2011-12, though the Reporting Officer has not given the comments in the appropriate adverse column, the Reviewing Officer confirmed that he agrees with the adverse comments given by the Reporting Officer which has been entered in the "Adverse Box". So the comments of the Reporting Officer have been treated as "Adverse". (vi). As per GRIDCO Officers’ Promotion Policy, "If any of the reports during the eligibility period is found to be "Adverse in overall and this had not been expunged, the officer shall be declared unsuitable for promotion.” In case where one or more attributes in the Appraisal/Performance Report had been adverse but the overall rating is not below average and the adverse entries had not been expunged, the overall rating shall be downgraded to next below level for merit rating". In the case of the petitioner, as the Adverse Remarks has not been expunged, the "Average rating is to be downgraded as "Below Average". Hence, as per promotion policy, the Petitioner is not suitable Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 for promotion. Hence the contention of the Petitioner is false and without any substance. (vii). The promotion to the higher post is not a matter of right, the same is regulated under the Officers’ Service Regulation and the Promotion Policy framed for the purpose. The Petitioner has been communicated the entries in EPAR and his representation was duly considered on the basis of the guidelines for review of EPAR, communication of adverse remarks, submissions of the representation and disposal of the same, which was circulated under Circular No.4038 dated 13.03.2007. No further remedy available for consideration of further representation in as much as the representation has already been disposed of by the competent authority appointed for the purpose under Circular No. 7205 dated 21.10.2005. (viii). After observing all the formalities, the adverse entries have been made in the EPAR of the Petitioner. There is no malafide intention and no fundamental right has been violated in respect of the Petitioner. (ix). The impugned orders are based on personal assessment of Reporting Officer, Reviewing Officer and the Accepting Officer and based on proved evidence/materials on record. Such assessment cannot be re- assessed by the Court which is well settled in the law. The Opp. Parties do hereby deny all the facts and allegations made in the Writ petition except those that have been specifically admitted in this Counter Affidavit. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 7 of 13 IV. COURT’S REASONING AND ANALYSIS: 5. 6. 7. I have heard the learned counsels for the parties at length and perused all the pleadings and documents filed carefully. This Court shall now scrutinize the primary arguments of the Petitioner which fall for consideration: It is contended by the counsel for the petitioner that the opposite parties have not followed their own guideline as stated in their circular no.4038 paragraph 10(5). The relevant guidelines are produced hereinbelow: “10. (5) Where the performance of the individual during the year is unsatisfactory, but not warranting disciplinary action the following course shall be adopted: (a) the Officer may be counseled by his Controlling Officer and a course of action agreed to correct or prevent the situation recurring (b) if after such counseling the performance does not improve to the require standard the Officer is given a formal warning letter, which sets out the circumstances, the action agreed to improve performance and the date by which this must be achieved; (c) the Controlling Officer signs the warning letter and a copy is sent to the Counter Signing Officer and to the HR Department to be placed on the Officer’s personal file; (d) failure to improve performance as set out in the warning letter may lead to the initiation of disciplinary action.” 8. At the outset, I am not persuaded by the Petitioner’s contention. The cited guidelines merely address non-disciplinary actions that may be taken against an employee whose performance is deemed unsatisfactory. The petitioner erroneously interprets the denial of promotion as a punitive measure; governed by these guidelines. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 8 of 13 9. As such, in Union of India v. K.V. Jankiraman,1 the Supreme Court has held as following: "An employee has no right to promotion. He has only right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest…” 10. The petitioner’s case was duly considered but subsequently rejected due to the “adverse remarks” in his EPAR. In such circumstances, the denial of promotion does not constitute a penalty but is a necessary consequence of the employee’s performance. Indeed, while considering an employee for promotion, the entire record must be reviewed. If the promotion committee takes into account the employee’s EPAR and decides against promotion, such a decision cannot be deemed to be punitive. Therefore, the guidelines are irrelevant in this case and cannot be invoked to challenge the lawfulness of the denial of promotions. 11. It is now well established that adverse remarks are made to evaluate an officer’s competence and performance, categorizing them into grades like outstanding, very good, satisfactory, or average. The competent authority and reviewing authority must conduct a fair and objective assessment of the officer’s character, integrity, and performance. Should the competent or reviewing authority determine that the officer’s performance or integrity is questionable, they are required to record this 1AIR 1991 SC 2010 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 9 of 13 in the EPAR. This entry is then communicated to the officer, giving them the opportunity to submit an explanation. The report was duly communicated to the petitioner in order to settle the contention. 12. I now move to the second contention of the petitioner i.e. in the document‘ Remarks of the Reporting Officer’, the remarks are not made by the reporting officer in the specific blocks meant for adverse remarks and thus, they are his personal opinion. This cannot be accepted as a substantial argument because the remarks have been affirmed by the reviewing authority. The contention of the counsel for the Opposite Party is satisfactory, relying on Office Circular No. 4038 dated 13.03.2007. It is logical that the remarks can be treated as “not adverse” only if the Reviewing Authority or the Accepting Authority specifically indicates disagreement with the author of the adverse remarks. Ergo, in the conspicuous absence of any contradictory remarks in the statements of the reporting officer and the reviewing authority, the intent behind the remarks cannot be assumed to be merely an ‘opinion’. 13. The counsel for the petitioner has cast doubt on the upgrade in the petitioner’s marks, noting that the reporting officer initially gave the petitioner 7.2 marks, which were subsequently increased to 9.5 by the reviewing officer. The Petitioner contends that if their performance was unsatisfactory and contained some adverse remarks, the reviewing officer should not have enhanced the grading from 7.2 to 9.5. 14. It is trite in service jurisprudence that when the grading of an employee or officer is upgraded, this revised grading must be considered by the promotion committee reviewing the earlier recommendations which Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 had assessed the non-upgraded grading. However, in this case, despite the increase in the petitioner’s marks, his EPAR still reflected an “Average grade.” Therefore, this increase in marks did not result in an upgraded grading, and thus, this argument does not significantly support the petitioner’s case. 15. Next, the learned counsel for the Petitioner argued that the basis of promotion criteria are merit-cum-suitability, with proper regard for seniority. The petitioner contended that the opposite party denied the promotion solely based on adverse remarks in the EPAR, which deemed his performance unsatisfactory. He argues that other criteria should have been taken into account with equal consideration. The petitioner’s presumption is fundamentally flawed and misguided. 16. Where the promotion is based on ‘merit-cum-seniority’/ the seniority is not the determinative factor. The emphasis is on the ‘merit’ of the officer. The comparative assessment of merit of officers being considered for promotion on the basis of their seniority, assumes utmost significance. A junior officer with higher merit than his senior, can steal march over the latter, depending upon fulfillment of other prescribedparameters. 17. In Haryana State Electronics Development Corporation Limited and others v. Seema Sharma and others,2 the Supreme Court held that the principle of merit-cum-seniority puts greater emphasis on merit & ability and where promotion is governed by this principle, seniority plays a less significant role. However, seniority is to be given weightage 2(2009) 7 SCC 311 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 11 of 13 when merit and ability more or less are equal amongst the candidates who are to be promoted. “The Court is of the opinion that the principle of Merit-cum- Seniority and that of Seniority- cum-Merit are two totally different principles. The principle of Merit-cum- Seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of Seniority-cum-Merit.” 18. In the instant case, it is an admitted position that it is the principle of ‘merit-cum-seniority’ and not ‘seniority-cum-merit’/ which is applicable. That being so, the seniority would play a much lesser role. Its significance would lay only in ascertaining the officers falling in zone of consideration for considering their cases for promotion. Once that is determined, it is their inter-se merit which will hold the key for their promotion. Clearly, the case of the petitioner for promotion faltered in the merit stage itself. Thus, there is no help questioning the Opp. party for not considering the other criteria against the petitioner. 19. In the end, it is contended by the Petitioner that order passed in letter dated 14.11.2012 and 10.04.2015 are made without assigning any reasons which also amounts to violation of principle of natural justice. I disagree. The two impugned letters are well-reasoned and articulate, Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 clearly reflecting the careful consideration given to the matter. It is evident that these orders were not made without thorough deliberation. The letters provide a detailed and rational explanation for the decisions, undermining any claims of oversight or neglect. Now, this Court does not incline to interfere and set aside a well-reasoned order only on grounds of sympathy and sentiments alone. V. CONCLUSION 20. Upon examining the factual and legal considerations presented, this Court finds that there has been no procedural irregularity or violation of the Principles of Natural Justice in the preparation of the EPAR against the Petitioner or in the subsequent denial of promotion. 21. Thus, this Court finds no merit in the current petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order. 22. The Writ Petition is, accordingly, dismissed. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 31st July,, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Page 13 of 13