The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25821 of 2022 Aruna Kumar Padhy …. Petitioner -versus- State of Odisha and others …. Opposite Parties For Petitioner For Opp. Parties : : M/s. Prasanta Kumar Mishra, K.L. Kar and J. Mishra Mr. A. Behera, learned Addl. Standing Counsel W.P.(C) No.12123 of 2022 Rupak Kumar Das -versus- State of Odisha and others …. …. Petitioner Opposite Parties For Petitioner For Opp. Parties : : M/s. Pami Rath, A. Mohanty, S. Gumansingh, B. Takur and S. Mohanty. Mr. A. Behea, Learned Addl. Standing Counsel W.P.(C) No.12124 of 2022 Himansu Sekhar Panda …. Petitioner State of Odisha and others …. Opposite Parties -versus- // 2 // For Petitioner : M/s. P. Rath, A. Mohanty, S. Gumansingh, B. Takur and S. Mohanty. For Opp. Parties : Mr. R.N. Mishra, Learned Addl. Govt. Advocate W.P.(C) No.12125 of 2022 Prasanna Kumar Das …. Petitioner State of Odisha and others …. Opposite Parties -versus- For Petitioner For Opp. Parties : : M/s. P. Rath, A. Mohanty, S. Gumansingh, B. Takur and S. Mohanty. Mr. R.N. Mishra, Learned Addl. Govt. Advocate CORAM: JUSTICE A.K. MOHAPATRA JUDGMENT Date of hearing : 03.01.2023 | Date of Judgment : 31.03.2023 A.K. Mohapatra, J. The above noted writ petitions involve a common question of law and issue which is required to be adjudicated is based on a common set // 3 // of facts. Accordingly, the writ petitions tagged and heard together and the same are being disposed by following common judgment. W.P.(C) No.25821 of 2022 1. The petitioner being aggrieved by order dated 14.09.2022 passed by the Revenue Divisional Commissioner (S.D.), Berhampur-Opposite Party No.4 at Annexure-11 has knocked the door of this Court for justice, by filing the present writ application. While assailing the impugned order dated 14.09.2022 under Annexure-11 and praying for quashing the said order, the petitioner has also sought for a direction to the Opposite Parties to treat the CCR of the petitioner for the year 2015-2016, as “Outstanding” and issue a direction to the Opposite Parties to consider the case of the petitioner for promotion to “ORS Group-B” Cadre for recruitment year 2021 treating the required number of years of CCR as “Outstanding” and to promote the petitioner with all consequential and financial benefits. Shorn of all unnecessary detail, the factual matrix involved in the writ application, in a nutshell, is that the petitioner was selected by following regular process of selection for the post of Junior Clerk (Junior Revenue Assistant). After his due selection, the petitioner was appointed and accordingly, the petitioner joined as Junior Clerk (Junior Revenue Assistant). While working as such, the petitioner got promotion to the rank of Senior Clerk (Senior Revenue Assistant) on // 4 // 01.07.2009. Since the date of his promotion as Senior Revenue Assistant, the petitioner has been continuing as such, till date under the Administrative Control of the Collector, Rayagada. 2. While the petitioner was continuing in service, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, Governor of Odisha introduced a set of rules called as Odisha Revenue Service (Recruitment) Rules, 2011 to regulate the methods of recruitment and conditions of service of persons appointed to the Odisha Revenue Service. In view of Rule-4(a) of the 2011 Rules, 50% of the total posts are required to be filled up by direct recruitment. Further in terms of Rule 4(b), 30% of total posts are required to be filled up by way of promotion as envisaged under Rule-6. The balance 20% posts are to be filled up by way of selection in terms of Rule-4(c). 3. While the petitioner was continuing as Senior Revenue Assistant under the Collector, Rayagada, the Board of Revenue Odisha, Cuttack- Opposite Party No.3 vide letter dated 18.11.2020 requested all RDCs, Inspector General of Registration, Director, Land Records and Survey, Director Consolidation, Odisha Cuttack to recommend the names of the officers having “Outstanding” CCR and ability, who are within 53 years of age with attested copies of five years of CCR for the recruitment year // 5 // 2020 for recruitment to ORS(Group-B) by way of promotion for the recruitment year 2020 in terms of Rule, 4(b) of the Rules, 2011. 4. The Collector, Rayagda (Opposite Party No.5) vide his letter dated 15.12.2020 had recommended the names of nine eligible Senior Revenue Assistants including the name of the petitioner in a prescribed proforma strictly on the basis of seniority maintained in the district office for consideration of their cases for promotion to ORS (Group-B) Cadre. So far the petitioner is concerned, the Opposite Party No.5 had recommended his case with attested copies of the CCR of five years out of which four years with “Outstanding” remark and one year i.e. 2015- 2016 with “Very Good” remark. So far the year 2015-2016 is concerned, it has been stated that although Reporting Officer had given “Outstanding” remark, which had been reviewed and the same has been modified to “Very Good” by the Reviewing Authority. 5. While the matter stood thus, the Revenue Divisional Commissioner (S.D.), Ganjam (in short ‘the RDC’) (Opposite Party No.4) vide his letter dated 20.12.2020 recommended the names of nine Senior Revenue Assistants including the name of the petitioner and his juniors for consideration for promotion to ORS (Group-B) for the recruitment year 2020. However, the Opposite Parties without following the rules and the guidelines selected and promoted juniors to the // 6 // petitioner for promotion to ORS (Group-B) Cadre vide notification dated 29.12.2021. The petitioner was not given promotion to ORS (Group-B) Cadre despite fulfilling all the eligibility criteria as has envisaged in the Rules, 2011. 6. Later on, the petitioner came to learn that he has not been given promotion to the ORS (Group-B) Cadre as he was having “Very Good” remark for one year i.e. 2015-2016 and “Outstanding” for all other years, which were taken into consideration by the DPC. It is further stated that for the year 2015-2016 although the petitioner has been awarded “Outstanding” remark by the Reporting Officer, however, the Counter Signing Officer without assigning any reason has down-graded the remark in the CCR from “Outstanding” to “Very Good”. Further it has also been stated in the writ application that while down-grading the remark given by the Reporting Officer, neither the petitioner was given any opportunity of hearing nor any communication was given to the petitioner informing him about down grading of the written remark for the year 2015-2016. Such facts were ascertained by the petitioner by obtaining information under the Right to Information Act. After coming to know about such down grading in December, 2021, through the information received under the RTI Act, the petitioner submitted a detailed representation dated 13.12.2021 before the Opposite Party No.4 // 7 // with prayer to up-grade the CCR for the year 2015-2016 from “Outstanding” to “Very Good”. Hence, such a remark is an adverse remark which has a Civil consequences as the future prospects of getting promotion of the petitioner is likely to be affected adversely. The representation dated 13.12.2021 under Annxure-4 was not considered and kept pending by the Opposite Parties. Therefore, the petitioner was compelled to approach this Court earlier by filing a writ application bearing W.P.(C) No.9347 of 2022 challenging the action of the authorities in down grading the rating of the petitioner in respect of the year 2015-2016 unilaterally without communicating the same to the petitioner and without providing an opportunity to make a representation to the petitioner against such adverse remark. The Opposite Party No.4 forwarded the representation of the petitioner dated 13.12.2021 to Opposite Party No.5, who in turn vide his letter dated 10.03.2022 forwarded the representation with recommendation to consider the case as accepting officer has toned down the remark of “Outstanding” to “Very Good” without assigning any reason. It has also been observed in the letter of Opposite Party No.5 that such down grading of remark in CCR was not communicated to the petitioner as the remark “Very Good” is not considered as adverse remark. // 8 // 7. While the matter stood thus, the Opposite Party No.4 vide his letter dated 02.05.2022 has mechanically rejected the representation of the petitioner without assigning any reason. Being aggrieved by the said order dated 02.05.2022, the petitioner approached this Court by filing W.P.(C) No.15758 of 2022. This Court vide order dated 26.07.2022 was pleased to quash the order dated 02.05.2022 passed by the Opposite Party No.4 with a direction to take a fresh decision on the representation of the petitioner. 8. On 29.06.2022, Opposite Party No.3 has once again issued a letter to the recommending authorities for recommendation of the names of the eligible officers with five years of CCR from 2015-2015 to 2019-2020 for consideration for promotion to ORS (Group-B) Cadre for the recruitment year 2021. Pursuant to such letter, the Opposite Party No.5 vide letter dated 27.07.2022 has recommended the names of the petitioner for promotion to the post of ORS (Group-B) Cadre for the recruitment year 2021, this time also the CCRs of the year 2015-2016 to 2019-2020 where under consideration and out of total five years, the petitioner had four “Outstanding” CCR and one year i.e. 2015-2016 he had “Very Good” CCR. The circumstances under which, the petitioner was given remark of “Very Good” has been narrated hereinabove. Further, it has been stated in the writ application that since the petitioner // 9 // was denied the promotion for the year 2020, he was also apprehending similar fate this time around because of “Very Good” CCR for one year. 9. It has also been stated in the writ application that the representation of the petitioner was rejected by the Opposite Party No.4 vide order dated 14.09.2022 by misinterpreting the judgment of the Hon’ble Supreme Court. Therefore, such rejection of the representation by the Opposite Party No.4 is illegal, arbitrary and discriminatory. 10. Per contra, a joint counter affidavit has been filed on behalf of the Opposite Party Nos.1 and 4. In the said counter affidavit, it has been stated that as per the provisions contained in Book Circular No.46 dated 05.02.1982, a representation against adverse remark of appointing authority will be made before the next higher authority and in the case of the petitioner, the representation is not against adverse remark but for up- gradation in his CCR for the year 2015-2016 from “Very Good” to “Outstanding”. Since there is no such provision, in the aforesaid Book Circular No.46 for up-gradation of non-adverse CCRs, the Opposite Party No.4 had no scope to accept the prayer of the petitioner. 11. In the counter affidavit, it has also been stated that pursuant to
Legal Reasoning
order passed by this Court in W.P.(C) No.15758 of 2022 vide order dated 26.07.2022, the Opposite Party No.4 issued notice to the petitioner. // 10 // When the petitioner appeared before the Opposite Party No.4, he was asked to produce relevant provision to substantiate his claim. The Opposite Party No.4 is the competent authority for up-gradation of the CCR, which are not adverse in nature even beyond the provision of Book Circular No.46. On thorough perusal of the documents submitted by the petitioner, the Opposite Party No.4 narrated that the petitioner has failed to submit proper document to justify his claim. Further, justification has been given by the Opposite Party No.4 by stating that the Opposite Party No.4 being the next higher authority of Collector, Rayagada, the appointing authority of the petitioner, is empowered only to consider adverse remark, if any, written in the CCR of the petitioner and that grading of “Very Good” given by the Collector, Rayagada-Opposite Party No.5 as the final Accepting Authority cannot be termed as “adverse”. Further such circular only provides for expunction of adverse remark. It has also been stated in the counter affidavit that the G.A. Department letter dated 18.07.2013 is not applicable to the case of the petitioner as the petitioner comes under the Category of “Group-C” employee. 12. A rejoinder affidavit has also been filed to the counter affidavit of Opposite Party Nos.1 and 4. In the said rejoinder affidavit, it has been
Decision
stated that the averments in Paragraph-3 to 15 of the writ petition has not // 11 // been specifically controverted by such Opposite Parties. On the contrary, the affidavit has been filed by reiterating the grounds stated in the rejection order dated 14.09.2022. 13. In the rejoinder affidavit filed by the petitioner, the petitioner has stated that nowhere in the counter affidavit the Opposite Parties have disputed the fact that the remark “Very Good” in CCR in the year 2015- 2016 was ever communicated to the petitioner and any opportunity was provided to the petitioner to make a representation against such remarks. Moreover, it has also been stated that the remark made in the CCR for the year 2015-2016, has serious consequences as the petitioner was denied promotion only on that ground. Therefore, referring to various judgments of the Hon’ble Supreme Court, the petitioner has laid emphasis on the ground that the remark of “Very good” in the CCR for the year 2015- 2016 being an adverse remark, the same should have been communicated to the petitioner by providing an opportunity to the petitioner to make a representation to the authority against such adverse remark. Referring to the judgments of the Hon’ble Supreme Court, it has been stated that since such a procedure has not been followed in the case of the petitioner, the conduct of the Opposite Party No.4 in rejecting the representation of the petitioner is illegal, arbitrary and discriminatory and as such, unsustainable in law. // 12 // 14. Furthermore, referring to the G.A. Department memorandum dated 05.02.1982 under Annexure-13, which is also otherwise known as Book Circular No.46 and specifically referring to Clause-(xiii), it has been stated that while maintaining CCR, the counter signing authority should clearly indicate their assessment where they agree with the remark and reasons be given by the officer where they feel that R.Os. remark should be toned down and a clear indication to that effect should be given. In contrast, the provision contained in G.A. Department memorandum dated 18.07.2013 in respect of the Group-A and Group-B Officers has also been referred to. Such memorandum dated 18.07.2013 provides a guidelines for recording and maintenance of PARs by giving chance to the officers to make representation for up-gradation of their benchmarks i.e. in Clause-3(iii) and (iv). Thus, laying emphasis on the aforesaid two memorandums of the G.A. Department, one in “Group-C” and another for “Group-A and B” officers, it has been stated “Group-C” employees like the petitioners have been discriminated against and that the memorandum of the G.A. Department dated 05.02.1982 under Annexure- 13 is not consistent with the law laid down by the Hon’ble Supreme Court in the case of Dev Dutt vrs. Union of India and others and many other judgments. // 13 // W.P.(C) No.12123 of 2022 Rupak Kumar Das vrs. State of Odisha and others 15. By filing the above noted writ application, the petitioner has sought for quashing of office order dated 06.04.2022 under Annexure-11 and further for issuance of writ of mandamus directing the Opposite Parties particularly, Opposite Party No.2 to grant an opportunity to the petitioner to represent against entry of “Very Good” for the year 2016- 2017 in terms of the Book Circular of G.A. Department dated 15.02.1982 read with principle of law laid down by the Hon’ble Supreme Court of India in the case of Dev Dutt vrs. Union of India and others as well as judgment rendered by this Court in W.P.(C) No.5260 of 2009 disposed of 17.03.2020 : reported in 2020 (I) OLR 771 and further a direction to the Opposite Parties be also given to hold DPC/Review DPC and to consider the case of the petitioner for promotion to the post of ORS (Group-B) Cadre and accordingly, give promotion to the petitioner with effect from the date his juniors have been given promotion vide notification dated 29.12.2021. W.P.(C) No.12124 of 2022 Himanshu Sekhar Panda vrs. State of Odisha and others // 14 // 16. This writ application has been filed by the petitioner with an identical prayer as has been made in the W.P.(C) No.12123 of 2022 for the sake of brevity the same has not been repeated here. W.P.(C) No.12125 of 2022 Prasanna Kumar Das vrs. State of Odisha and others 17. The above noted writ application has also been filed with an identical prayer as has been made in W.P.(C) No.12123 of 2022 and W.P.(C) No.12124 of 2022. Therefore, for the sake of brevity, the prayer has not been repeated here. Since the factual background involved in the above noted three writ applications are identical, the facts of the case W.P.(C) No.12123 of 2022, the same is being treated as the lead case in the batch of writ applications. Accordingly, the facts stated in W.P.(C) No.12123 of 2023 is being discussed / analyzed herein below:- On perusal of the writ application bearing W.P.(C) No.12123 of 2022, it appears that initially the petitioner was appointed as Junior Clerk in the office of the Sub-collector, Balasore vide order dated 24.02.2009 and accordingly, the petitioner joined in service, the petitioner was // 15 // promoted to the post of Senior Clerk. Till date, the petitioner is continuing as Senor Revenue Assistant. While the petitioner was continuing as Senor Revenue Assistant, the Board of Revenue Odisha, Cuttack issued notification/guideline dated 18.11.2020 to all Revenue Divisions to recommend a large number of Revenue Ministerial staff for consideration of their cases for promotion to Odisha Revenue Service (ORS)(Group-B) cadre for the recruitment year 2020. Pursuant to the said notification application format along with copy of the notification were provided to all eligible staff to enable them to apply so that their cases can be considered for promotion to the post of “ORS Group-B”. Notification dated 18.11.2020 also lays down the eligibility criteria for promotion to the post of “ORS Group-B”. Since the petitioner was fulfilling all the criteria, the Collector- cum-D.M., Balasore vide letter dated 05.12.2020 recommended the name of the petitioner for consideration of promotion to the next higher grade i.e. “ORS Group-B” cadre. However, Odisha Public Service Commission vide letter dated 22.12.2021 gave its concurrence to the proposal of the selection committee for promotion of 154 officers to “ORS Group-B” cadre for the recruitment year 2020 ignoring the case of the petitioner. // 16 // On the basis of the recommendation of the selection committee and the concurrence given by the Odisha Public Service Commission, the Opposite parties vide Notification dated 29.12.2021 promoted 154 officers which includes the name of some officers, who are junior to the petitioner. Although the petitioner fulfills all the eligibility criteria as envisaged in the rules and as laid down in the notification dated 18.11.2020, the name of the petitioner did not find place in the final notification dated 29.1.2021 under Annexure-6. Although the case of the petitioner was recommended to the DPC by the departmental authorities as the petitioner was found eligible along with eligible candidates, however, the petitioner has come to learn that in the CCR of the petitioner, the Collector, Balasore has given a remark “Very Good” for the year 2016-2017, therefore, the case of the petitioner has not been considered and he has not been given promotion to “ORS Group-B” cadre. Immediately thereafter, the petitioner sought for information under the RTI Act pertaining to entries in the CCR for the year 2013-2014, 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019 and 2019- 2020 from the office of the Collector-cum-D.M. Balasore. The public information officer in the office of the Collector-cum-D.M. Balasore vide his letter dated 01.01.2022 supplied copy of the CCRs for the aforesaid periods to the petitioner. // 17 // On a close scrutiny of the information obtain under the RTI Act, which has been filed as Annexure-7 to the writ application, the petitioner was extremely shocked to know that for the year 2016-2017 he has been awarded a remark and accordingly an entry has been made in the CCR of the petitioner as “Very Good”. So far the CCR of other years are concerned, the petitioner has been given as “Outstanding”. It has also been stated in the writ application that although in respect of the year 2016-2017, Sub-collector, Balasore, had awarded “Outstanding” remark in the CCR, however, the Collector, Balasore on review has modified the same and a “Very Good” remark has been entered in the service book. Further it has been emphatically pleaded that the above noted entry of “Very Good” for the year 2016-2017, in the CCR of the petitioner, has neither been communicated nor the petitioner was afforded an opportunity to represent against such remark at any point of time. Further it has been pleaded that although the petitioner in the meantime has made a representation to the RDC, Central Division, Odisha, Cuttack against the entry in CCR in respect of the year 2016-2017 by the Collector, Balasore with a specific prayer to grant him opportunity to make a representation against such adverse entry in terms of G.A. Department circular as well as the judgment of the Hon’ble Supreme Court and to re- consider the case of the petitioner for promotion to the post of “ORS // 18 // Group-B” by convening a review DPC, as of now, no action whatsoever has been taken on the representation of the petitioner dated 10.01.2022 under Annexure-8 to the writ application. Challenging the aforesaid inaction of the authorities to consider the representation dated 10.01.2022 under Annexure-8 submitted by the petitioner, the petitioner had earlier approached this Court by filing W.P.(C) No.3909 of 2022, this Court after hearing learned counsel for the petitioner disposed of the above noted writ application with a direction to the Opposite Parties to consider the representation of the petitioner under Annexure-9 taking into consideration Annexures-7 and 8 and to pass a reasoned and speaking order within a period of three months. After disposal of the above noted writ application, the petitioner approached the RDC with a certified copy of the order dated 08.02.2022, however, the RDC Central Division, Cuttack vide order dated 06.04.2022 rejected the representation of the petitioner on the ground that the judgment rendered by the Hon’ble Supreme Court in Civil Appeal No.7631 of 2002 with a specific direction, which is applicable to a particular group of employees and as such, the same cannot be made applicable to the facts of the petitioner’s case. Further, the Opposite Party No.3 in the rejection order has observed that the Book Circular No.46 // 19 // issued by the G.A. Department vide memo dated 05.02.1982 only deals with the adverse remarks of the CCR and there is no provision of communicating remarks other than the adverse remark and that the remarks “Very Good” does not come under the category of adverse remark. Accordingly, the Opposite Party No.3 has justified the action in non-communication of the remark in respect of the year 2016-2017 entered in the service book of the petitioner. Finally, the Opposite Party No.3 has also observed that the communication of the remarks in CCR of the employees concerned are done in a routine manner, the same will have serious repercussions on the honest assessment of an officer under his control and the discipline in administration will be disturbed. Accordingly, vide order dated 06.04.2022, the Opposite Party No.3 has rejected the representation of the petitioner which has been annexed to the writ application as Annexure-11. 18. Heard learned counsels appearing for the petitioners in different writ petitions as well as leaned Additional Government Advocate for the State-Opposite Parties. Perused the pleadings of the parties as well as materials placed before this Court in course of hearing of writ petitions. 19. After a careful analysis of the factual background involved in all the writ petitions and upon a careful consideration of the contentions raised by learned counsels appearing for the parties in all the above noted // 20 // writ applications, this Court is of the considered view that this Court is basically required to adjudicate two important questions of law, those are involved in the above noted batch of writ applications; I. Whether the remark of “Very Good” in the CCR of the petitioner is to be treated as an adverse remark in the facts and circumstances of the petitioner’s case? II. Whether the remark in the CCR of the petitioner of “Very Good” for the relevant year which was used against the petitioner for not considering his case for promotion to ORS (Group-B) Cadre was required to be communicated to the petitioner by providing an opportunity to the petitioner to make a representation against such remark? III. To what relief, the petitioners are entitled to in the facts and circumstances of the present case? 20. Before answering the questions formulated by this Court for adjudication of the present batch of writ applications, this Court is required to analyze the provisions of law applicable to the facts and circumstances of the respective petitioner’s case. Since the issues and the facts involved in the above noted batch of writ applications are similar, therefore, in such common background facts, this Court would proceed to examine the position of law. In the lead matter i.e. W.P.(C) No.25821 of 2022, learned counsel for the petitioner has referred to the guidelines for // 21 // recording and maintenance of PARs of Group-A and Group-B officers of the State Government as introduced by the G.A. Department, Government of Odisha on 18.07.2013 under Annexure-14. He has also referred to the guidelines with regard to confidential character rolls and non-gazetted employees of the Government. Such procedure provides for the recording and maintenance of CCR and communication of adverse remark and opportunity to make a representation and for disposal of such representations, which was issued vide Memo No.741-PRO-11/81-(SE) by the G.A. Department, Government of Odisha on 5th of February, 1982 indisputably, both the guidelines have been issued in the shape of executive instructions. 21. Let us first examine the guidelines of the year 1982 issued vide Memo dated 5th of February, 1982 under Annexure-13. Clause-(xiii) of the aforesaid guideline provides that the countersigning authority should clearly indicate in their assessment whether they are agreeing with the remarks and rating given by the R.O. If they feel that the R.O’s remark should be modified or toned down, a clear indication to that effect should be given. These instructions would apply to the accepting authorities also. If the R.O. and C.O. have given conflicting assessment, the accepting authority has to indicate clearly with whom he agrees. // 22 // Whereas Clause (xiv) of the guidelines provides that C.Rs on receipt, will be scrutinized in the office of the appointing authority and all adverse remarks will be communicated to the employees by the officers entrusted with maintenance of C.Rs. The purpose of the communication is to ensure that the employee rectifies his defects at the earliest. Hence, the utmost priority should be given to communication of adverse remark. All such communications should normally be issued before 31st of December immediately following the report period. Whereas Clause (xv) provides that the employees are expected to profit by the communication of the adverse remarks and should not regard that as matters of argument. Hence, representations against adverse remarks should not ordinarily be entertained. But in cases whether the impugned remark, obviously, is the result of a mistake on the part of the assessing authority, the representation may be entertained and considered. Representations should be factual and courteously worded and should not be argumentative. Similarly, Clause (xvi) provides that the representations will be generally disposed of by the appointing authority, it means, the same will be disposed of by the next higher authority. In such cases, representations should be forwarded to the authorities as indicated in the said clause. // 23 // Moreover, Clause (xviii) provides that if on examination of the representation, it is found that the remark should be expunged, modified toned down, necessary corrections to that effect will be made in CR under proper attestation. If it is found that the representation has no merit, it should be rejected. The decision in either case will be intimated to the representationist. Finally, it has also been provided in the above noted guidelines that all representations must be filed within a period of six months from the date of receipt of communication. In exceptional case, however, where the reasons for delay are explained to his satisfaction, the competent authority may extent this period, which in no case should exceed one year. Representations should ordinarily be disposed of within three months from the date of receipt. 22. In view of the aforesaid provisions in the guidelines of the G.A. Department vide Memo dated 05.02.1982, it is crystal clear that the said guidelines provides a window to the petitioner to make a representation, if the remarks made in the CCR of the petitioner are adverse in nature. Further the same also provides for a complete Code with regard to manner in which the representation made by any employee against any adverse remark is to be dealt with by the authorities. // 24 // 23. The next guidelines vide letter dated 18.07.2013 of the G.A. Department for recording and maintenance of PARs is meant for Group- A and Group-B Officers of the State Government. The guidelines vide letter dated 18.07.2013 under Annexure-14 reference to memo of the G.A. Department dated 26.04.2006, which has been issued by the Government of Odisha through G.A. Department for recording and maintenance of PARs of Group-A and Group-B Officers of the Government. In the very beginning of the letter dated 18.07.2013, it has been provided by referring to Para-12 (ii) on memo dated 26.04.2006 that “all adverse remarks contained in earmarked box in part-III, IV & V of the PAR should be communicated directly to the officers concerned by the GA(SE) Department within two months of the receipt of the complete PAR”. Similarly, Para-15(v) also provides that the representation against the adverse remarks should be normally disposed of within six months from the receipt of such representation taking into consideration facts stated in the PAR, representation and substantiation report, if any. Furthermore, the order passed on the representation shall be informed suitably to the officer concerned. Further, letter under Annexure-14 has also referred to a judgment of the Central Administrative Tribunal, Hyderabad Bench dated 04.12.2008 in O.A. No.665 of 2006 in the case of Tejdeep Kumar Menon vrs. UOI and others. In para-3 of the // 25 // aforesaid letter, a clear procedure has been laid down with regard to up- gradation/down gradation of PARs after expunction of adverse remarks. In Clause 3(i) it has also been specifically provided that an adverse entry should be communicated to the Officer concerned along with overall grading. Further Clause-3(iv) provides that where the authority has upgraded/downgraded the overall grading without giving sufficient reasons, the Government shall treat such an exercise as non-est/invalid. 24. Keeping in view the above stated principles laid down under Annexures-13 and 14 by the G.A. Department, Government of Odisha, this Court at this stage would proceed to analyze the law laid down by the Hon’ble Supreme Court of India on the issue involved in the present batch of writ applications. In the case of U.P. Jal Nigam and others vrs. Prabhat Chandra Jain and others : reported 1996 SCC (L&S) 519. The issue that fell for determination by the Hon’ble Supreme Court is as to when entry in the CCR could be construed as an adverse remark. In the said reported case, the Nigam has rules whereunder an adverse entry is required to be communicated to the employees concerned but not downgrading for an entry. While answering the issue, the Hon’ble Supreme Court while coming to a conclusion that it may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry in CCR should always be // 26 // qualitatively damaging may not be true. For better understanding of the findings of the Hon’ble Supreme Court in the aforesaid reported judgment, this Court would like to extract para-3 of the said judgment:- xx xx xx xx “3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employees concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that it is not required to be communicated. As we view it extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going to step down, like falling from ‘very good’ to ‘good’ that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part and may slacken in // 27 // his work, relaxing secure by his one-time achievement. This Court be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.” xx xx xx xx 25. The next judgment of the Hon’ble Supreme court which is relevant for the purpose of the present case, is in the matter of Dev Dutt vrs. Union of India and others : reported in AIR 2008 S.C. 2513. After a threadbare analysis of the facts involved in the said case, Hon’ble Supreme Court was of the view that the fairness and transparency in public administration requires that all entries whether poor, fair, adverse, good or very good in the Annual Confidential Report of a public servant, // 28 // whether the civil, judicial, police or any other State service must be communicated to him within a reasonable period so that he can make a representation for its upgradation. However, only exception to the aforesaid principle laid down by the Hon’ble Supreme Court is the military service. Here at this juncture, this court would like to extract paragraph-10 of the aforesaid judgment:- xx xx xx xx “10. In the present case the bench-mark (i.e. essential requirement) laid down by the authorities for promotion to the post of Superintendent 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 candidates 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 rigorous 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.” xx xx xx xx // 29 // The observation of the Hon’ble Supreme Court in Paragraph-10 in the case of Dev Dutt (supra) is relevant for the purpose of the present case and to answer the first issue as to whether the remark of “Very Good” in the CCR of the petitioner is adverse remark in the facts and circumstances of the present case. In Paragraph-10 of the above noted judgment, the Hon’ble Supreme Court has very categorically come to a conclusion that the nomenclature of the remark is not relevant, rather it is the effect which the entry is having that will determine whether it is an adverse entry or not. Therefore, the remark that was given in the petitioner’s CCR (Very Good) is to be construed as an adverse remark in the facts and circumstances of the present case inasmuch as the DPC by relying upon such remark came to a conclusion that the petitioner is not eligible for promotion or such remark has an adverse effect on the chances of promotion of the petitioner. Therefore, the remarks in the CCR are very substantive and it depends on the facts and circumstances of each case. In the present batch of cases, the remark / entries made in the CCR which is admittedly used against the petitioner to make the petitioner ineligible for promotion, therefore, such remark, in the facts and circumstances of the petitioner’s case are no doubt adverse remarks. 26. In the above referred Dev Dutt case (supra), the issue was raised on behalf of the respondent by submitting before the Hon’ble Supreme // 30 // Court that under office memorandum issued by the Ministry of Personnel/Public Grievance and Pension dated 10/11.09.1987, only adverse entry is to be communicated to the concerned employee. In paragraph-12 of the judgment it was held by the Hon’ble Supreme Court that no rule or Government instruction can violate Article 14 or any other provisions of the Constitution, as the Constitution is highest law of the land. Moreover, it was also observed that the aforesaid office memorandum, if it is interpreted 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. The Hon’ble Supreme court went on to further observe that on similar rules/Government orders/Office Memorandum in respect of services under the State, whether the civil, judicial, police or other services (except the military)will hence also be illegal and are, therefore, liable to be ignored. 27. In the concluding paragraph of the case in Dev Dutt (supra), the Hon’ble Supreme Court directed that “good: entry be communicated to the appellant within a period of two months from the date of receipt of the copy of that judgment. On being communicated, the appellant may make the representation, if he so chooses against the said entry within two months thereafter and the said representation will be decided within // 31 // two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the DPC within three months thereafter and if the appellant succeeds, he should be given higher pension with arrears of pay with interest @ 8% per annum till the date of payment. 28. The next judgment, this Court would like to refer to which has been decided by the Hon’ble Supreme Court in the case of Abhijit Ghosh Dastidar vrs. Union of India and others : reported in Civil AppealNo.6227 of 2008 (Arising out of S.L.P.(C) No.26556 of 2004) in paragraph-4 of the said judgment, the Hon’ble Supreme Court had observed as follows:- xx xx xx xx “4. It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the 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 // 32 // good” in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, 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 respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” xx xx xx xx 29. In the case of Sukhdev Singh vrs. Union of India and others in Civil Appeal No.5892 of 2006 decided on 23rd of April, 2013, a Three Judge Bench of the Hon’ble Supreme Court was required to consider the inconsistency in two judgments of the Hon’ble Supreme Court i.e. U.P. Jal Nigam and others vrs. Prabhat Chandra Jain and others and Union of India and another vrs. Major Bahadur Singh. While answering the reference, a Three Judge Bench has taken note of the judgment in Dev // 33 // Dutt case (supra) and in Abhijit Ghosh Dastidar case (supra) while answering the reference in Paragraphs-8 and 9. Finally, affirmed the view in the case of Dev Dutt (supra). Paragrahs-8 and 9 of the said judgment is quoted herein below:- xx xx xx xx “8. In our opinion, the view taken in Dev. Dut that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in ACR to a public servant helps him/her to work harder and achieve more that help him in improving his work and give better results. Second and equally important, on being made aware of the entry in the 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. 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. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period. // 34 // 9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others and K.M. Mishra vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.” xx xx xx xx 30. While answering the issue involved in the present writ application, this Court would also like to refer to recent 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 of 2022 decided on 23rd of September, 2022. In view of G.R. Meghwal case (supra) the Reviewing Officer rated the respondent as “good” in the ACR of 2007-2008 instead of “very good” as was given in ACR in previous two years. Against such remark of “good”, the petitioner submitted a representation, which was rejected by the authority. Thereafter, a DPC meeting was held to consider grant of NFU in SAG. The respondent was found not eligible by the DPC on the ground that for the year 2007- 2008 his ACR was “good”. Challenging such decision of the DPC, the respondent approached the Central Administrative Tribunal. The Tribunal came to a conclusion that the remark entry for the year 2007-2008 was clearly adverse and same warranted communication to the officer concerned within the time limit and accordingly, the Tribunal set aside the rejection of the representation // 35 // and directed to review the case of the respondent ignoring below benchmark “good” for the year 2007-2008. 31. Being aggrieved by the decision of the Central Administrative Tribunal, the Union of India preferred a writ before the Rajasthan High Court by filing a writ application. The High Court of Rajasthan dismissed the writ application filed by the Union of India and others. As against such dismissal order, the Union of India approached the Hon’ble Supreme Court. While deciding the case, the Hon’ble Supreme Court has referred to the judgment of the Hon’ble Supreme Court in the case of Dev Dutt (supra) (2008) 8 SCC 725, Abhijit Ghosh Dastidar (supra) (2009) 16 SCC 146 and in the case of Sukhdev Singh (supra) (2013) 9 SCC 573. After analyzing the factual background of the case, a detailed analysis of the legal position, the Hon’ble Supreme Court in Paragraph- 10 of the judgment concluded as follows:- xx xx xx xx “10. Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the respondent was graded as “Very Good” in the ACRs for the year 2005-2006 and 2006-2007 and was graded only “Good” in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, // 36 // despite the fact that specifically the respondent was given the opportunity against the ACR for the year 2007-2008. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, the learned Tribunal and the High Court have not committed any error in directing the Department to call for a 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. Therefore, in the facts and circumstances of the case, no interference of this Court is called for. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed.” 32. Keeping in view of the aforesaid analysis of the legal position as well as factual background of the present case, this Court endeavoured to answer the questions formulated in para-19 of this judgment. So far present writ applications are concerned, it is the admitted position of the Opposite Parties that since remark given in the CCR of the petitioner is “Very Good”, the same is not to be treated as an adverse remark, // 37 // therefore, there was admittedly no necessity to communicate the same to the petitioner. 33. In contrast, on examination of the impugned order, it appears that the case of the petitioner has not been considered for promotion to ORS Group-B Cadre and the same has been rejected by the authorities vide order under Annexure-11. 34. Furthermore, perusal of the impugned order dated 14.09.2022 under Annexure-11 reveals that the RDC (SD), Berhampur has rejected the representation of the petitioner with the observation that the petitioner has failed to produce any court order/Government order to substantiate his claim regarding up-gradation of the remarks in his CCR recorded by accepting authority from “Very Good” to “Outstanding” and that as the process of recording of CCR of Non-Gazetted employees of Government of Odisha is governed by guidelines enunciated in Book Circular No.46, no power having been conferred on the authority in the said circular for up-gradation of remarks in his CCR from “Very Good” to “Outstanding”, as such, the relief sought for by the petitioner cannot be granted at this level and accordingly, the representation was disposed of. 35. On a careful analysis of such observation made by the RDC(S.D.), Berhampur, it appears that the petitioner was not given promotion to // 38 // ORS Group-B Cadre and his representation was rejected by the Opposite Parties on the ground that the CCR of the petitioner in the year 2015- 2016 contains a remark “Very Good”. Hence, the authorities, after considering such CCR of the petitioner, did not consider his case for promotion. Therefore, such remark has been used to the disadvantage of the petitioner and accordingly, the petitioners are seriously prejudiced. At this juncture, by applying the ratio laid down by the Hon’ble Supreme Court in Dev Dutt case (supra) as well as in Abhijit Ghosh Dastidar case (supra) to the effect that such entries should have been communicated to the employee concerned. Further in para-4 of the judgment in Abhijit Ghosh Dastidar case (supra), the Hon’ble Supreme Court has categorically held that where for promotion the benchmark of “Very Good” is required and admittedly, the entry of “Good” was not communicated to the Government employee, therefore, the entry “Good” should have been communicated to the concerned Government employee as he was having “Very Good” for the previous years. Further, it was held that non-communication of the entry “Good” to the public servant has civil consequence because such entry in CCR has affect chances for promotion and to get other service and financial benefits. Hence, the said non-communication would be arbitrary and as such violative of Article 14 of the Constitution of India. In such view of the matter this Court has // 39 // no hesitation to hold that the entry in CCR of the petitioner in respect of the year 2015-2016 as “Very Good” is adverse entry as the same has created obstacle in considering the case of the petitioner for promotion to the post of ORS Group-B. Accordingly, the 1st question is answered. 36. So far the 2nd question formulated by this Court in para-19 of this judgment is concerned, i.e. whether the remark “Very Good” in CCR of the petitioner for the relevant year was required to be communicated to the petitioner by providing the petitioner an opportunity to make a representation against such remark. Since this Court has categorically held that the remark “Very Good”, in the case of the petitioner to be an adverse remark, so far the petitioner is concerned. Therefore, by applying the law laid down by the Hon’ble Supreme Court in the above referred judgments, this Court is of the considered view that the Opposite Parties should have communicated such remarks in the CCR for the year 2015- 2016 to the petitioner and an opportunity should have been provided to the petitioner to make a representation against such remark. Therefore, the question no.2 is answered in the affirmative. 37. The next question that falls for consideration by this Court is as to whether petitioner is entitled to any relief in the facts and circumstances of the present case? In view of the analysis of law made hereinabove and further keeping in view the answer to question nos.1 and 2, this Court has // 40 // no hesitation to hold that the impugned order dated 14.09.222 under Annxure-11 is unsustainable in law and accordingly, the same is required to be quashed and hereby quashed. The Opposite Parties are directed to convene a review DPC meeting to re-assess the suitability of the petitioner for promotion to the post of ORS Group-B Cadre and while doing so, the adverse entry in the CCR of the petitioner in respect of the year 2015-2016 be excluded. In the event the petitioner is found otherwise suitable by taking into consideration equal number of immediate preceding years CCR of the petitioner, he shall be given promotion to the post of ORS Group-B Cadre with effect from the date his batch-mates were given promotion to ORS Group-B Cadre. It is needless to direct here that all service and financial benefits be extended in favour of the petitioner by taking into consideration the date of promotion of the petitioner to ORS Group-B Cadre from date on which the batch-mates of the petitioners were promoted. The Opposite Parties are directed to complete the aforesaid exercise within a period of two months from the date of production of certified copy of the judgment. 38. Accordingly, the writ petition stands allowed. However, there shall be no order as to cost. // 41 // W.P.(C) No.12123 of 2022 39. In view of the aforesaid analysis of law and categorical finding given by this Court, the present writ petition stands allowed. Accordingly, the order dated 06.04.2022 under Annexure-11 is hereby quashed. Further, it is directed that the Opposite Parties shall convene a review DPC immediately and the case of the petitioner for promotion to the post of ORS Group-B Cadre be considered by such review DPC in the light of the direction given in W.P.(C) No.25821 of 2022 decided on 31.03.2023 within a period of two months from the date of communication of this judgment. W.P.(C) No.12124 of 2022 40. In view of the aforesaid analysis of law and categorical finding given by this Court, the present writ petition stands allowed. Accordingly, the order dated 06.04.2022 under Annexure-11 is hereby quashed. Further, it is directed that the Opposite Parties shall convene a review DPC immediately and the case of the petitioner for promotion to the post of ORS Group-B Cadre be considered by such review DPC in the light of the direction given in W.P.(C) No.25821 of 2022 decided on 31.03.2023 within a period of two months from the date of communication of this judgment. // 42 // W.P.(C) No.12125 of 2022 41. In view of the aforesaid analysis of law as well as fact and further keeping in view the answer to the questions formulated in paragraph-19 of this judgment, the present writ application stands allowed, the impugned order dated 31.03.2022 under Annexure-11 is hereby quashed. Further, it is directed that the Opposite Parties shall convene a review DPC and proceed in the manner, as has been directed in W.P.(C) No.25821 of 2022 decided on 31.03.2023 within a period of two months from the date of communication of this judgment. Judge ( A.K. Mohapatra ) Orissa High Court, Cuttack The 31st of March, 2023/ Jagabandhu