P.K. Mohanti, J.@mdashThe Petitioner was appointed as Lecturer In Physics in Class II of the Orissa Education Service on 14-9-1951. He was promoted to the next higher post of Reader on 6-1.1970 on ad hoc basis and was reverted from that post as per Government of Orissa, Education Department Notification No. 20821 dated 30th July, 1971 (Annexure C/1). He has filed this writ application to quash the adverse entries in his Confidential Character Rolls for the period from 1964-65 to 1967-68 and to direct the State Government to reconsider his case for promotion with retrospective effect from the date when his juniors were promoted. He challenges the order of reversion in Annexure C/1 as mala fide and the adverse entries in the C.C.R. as invalid.
2. The State Government and the Director of Public Instruction (H. E), Orissa have filed a joint counter contending that though right from the year 1963 whenever the post of Reader in Physics fell vacant, the Petitioner''s case was taken up for consideration the Public Service Commission did not recommend him for promotion. On 12.5.1971 the Petitioner''s case was specifically referred to the Commission for consideration. But the Commission did not find him suitable for appointment as a Reader. With regard to the Character Roll entries, it is stated that the same were validly made and were duly communicated to the Petitioner. He submitted representations against the adverse entries for the years 1964-65, 1965-66 and 1967 -68 which were rejected by the State Government after careful consideration. He did not submit any representation against the adverse entries for the year 1966-67. He had earlier filed O.J.C. No. 92 of 1969 in this Court alleging that his case for promotion was not considered and this Court by its judgment dated 14.9.1973 dismissed the same holding that "Government was anxious that the Petitioner''s case should be considered favourably by the Public Service Commission and that the grievance of the Petitioner was therefore more fancised than real. It is accordingly urged that the Petitioner cannot reagitate the self-same matter as the previous judgment operates as res judicata.
3. The relevant file of the Education Department dealing with the Petitioner''s case for promotion to the rank of Reader was made available to us by the learned Standing Counsel at the time of hearing of this writ application and we have carefully gone through the same. The notification No. 103 dated 1-1-1970 appointing the Petitioner as a Reader on ad hoc basis is in the following terms:
Shri Sarat Chandra Misra, Lecturer in Physics in Class II of the Orissa Education Service, Ravenshaw College, Cut tack is appointed temporarily on ad hoc basis as the Reader in Physics in Class I of the Orissa Education Service in the said College for a period of six months with effect from the date he actually takes over the charge or till appointment is made on the recommendation of the Public Service Commission, whichever is earlier...
This shows that the Petitioner was appointed on ad hoc basis and his appointment was purely temporary. When consultation with the Public Service Commission is necessary for fining up a post, the Government has power to make an ad hoc appointment for a fixed period beyond which it cannot last without consultation with the Public Service Commission. It is not open to the Petitioner to challenge the order of reversion because he was never appointed on regular basis and had no right to the post. Since the Public Service Commission did not recommend the Petitioner for promotion to the rank of Reader on regular basis, he had to be reverted to his substantive post on expiry of the term of the ad hoc appointment. It is alleged that the order of reversion is vitiated by ''mala fide as the authorities concerned wanted to appoint Shri Sadananda Tarasia (opp. party No. 3) as a Reader by reverting the Petitioner from that post. The contention is wholly unfounded. The Petitioner was reverted to the post of Lecturer by order dated 30-7-1971 (Annexure C/1) as he was found unsuitable by the Public Service Commission and long thereafter i.e. on 29-12-1971 Shri Tarasia was appointed as a reader in Physics. Merely because Mr. Tarasia was appointed in the vacancy caused by the reversion of the Petitioner this is no ground for holding that the order of reversion suffers from the vice of mala fide.
4. As regards the adverse entries in C.C.R. the Petitioner''s main contention is that the procedure prescribed by the Book Circulars No. 5 dated 4-12-1946, No. 29 dated 19.2-1953 and No. 36 dated 11.8-] 958 regarding preparation and maintenance of the Confidential Character Roll and for communication of the adverse remarks was not followed by the authorities concerned and that on account of the invalid adverse entries in the C.C.R the Public Service Commission did not recommend his case for promotion on regular basis.
5. The entire Character Roll of the Petitioner for the years 1964-65 to 1967.68 was made available to us by the learned Standing Counsel and on a careful scrutiny of the same we are of the opinion that there is considerable force in the Petitioner''s contention. None of the Character Rolls contains any remark by the Deputy Minister or the Minister in the appropriate column of the prescribed form and as such the C.C. Rs. are incomplete records and there is no means at present to complete the same.
6. In the Confidential Character Roll for the year 1964-65 no adverse remark was recorded by the Reporting Officer.. But there was a remark by the counter-signing officer as follows:
"Should take sincere interest in teaching." This remark was never communicated to the Petitioner. In the D.O. letter No. 3279/S.E. dated 17-6-1968 addressed by the Additional Secretary to Government, Political and Services Department to the Petitioner it was mentioned as follows:
While reviewing the report on your work for the years 1964-65 and 1965-66, Government expect that you should improve your teaching.
This shows that though the adverse remarks for both the years were intended to be communicated, the remark in the C.C.R. of 1964-65 that the Petitioner "should take sincere interest in teaching" was not communicated. In part VI of the form of C.C.R. for 1965.66 an entry has been made as follows:
Should improve teaching.
It is this entry which was communicated by the aforesaid D. 0 letter. There is no signature or date under this entry. It cannot therefore be said to be an entry made by the counter signing officer. The entry being unsigned and undated cannot be acted upon.
7. The remark recorded by the counter-signing officer in the C.C.R. for the year 1966-67 is in the following terms:
Without sufficient qualification desires higher post. Creates dissatisfaction among students against the management. Undependable. The adverse remark for this year is said to have been communicated in the D.O. letter No. 5753/SE. dated 15th September. 1969 which runs as follows:
"While reviewing the report on your work for 1966-67 Government have observed that you created some dissatisfaction among the students against the management. Government hope that you will avoid it in future,
Obviously the remarks of the counter-signing officer to the effect that the Petitioner desired higher post without sufficient qualification and that he was undependable were ignored by the State Government. The aforesaid D.O. letter containing the remarks that the Petitioner created dissatisfaction among the students against the management has not been delivered to the Petitioner. We called for the Dak Book by which this letter was said to have been despatched to the Petitioner and found that the last column against the entry about this letter has been left blank and there is no signature of the receiving officer. There is no other material on record to show that the letter was delivered to the Petitioner. Thus, the adverse remarks which were recorded by, the counter-signing officer in the C.C.R. of 1966-67 have not been communicated although a period of about eight years has elapsed in the meantime. The Petitioner''s contention is that the D.P.I. who recorded these adverse remarks did not visit the College where he (Petitioner) was posted during that year and that the defect was never brought to his notice. No adverse remark can be recorded in the C.C.R. by any superior officer on the basis of the reports of other officers. Had the remarks been communicated within a reasonable time the Petitioner could have made a representation against the same and the officer recording the remark could have been- asked to substantiate the same. As the concerned D.P.I. has since retired from service, the question of substantiation of the adverse remark does not arise at present. In the circumstances, the adverse remarks in the C.C.R. of 1966-67 should be ignored.
8. The C.C.R. for the year 1967-68 consists of two parts. The first part contains the remarks for the period up to the end of September, 1967. It contains no adverse remark. The second part contains the remarks for the period from 20-11-1967 to 31-3-1968. The Reporting Officer gave good remarks in all the columns and in the column meant for recording general remarks he recorded as follows:
Recommended for promotion. But in part VI of the form the counter-signing officer has recorded the remark as follows:
An officer of complaining attitude.
In our opinion this is not relevant for assessment of teaching qualities of the Petitioner. That apart, this remark was made by Dr. B. Samantarai on 26.3.1969 after his retirement from service. It is admitted by the learned Standing Counsel that Dr. B. Samantary, the Director of Public Instruction (H. K) retired from service on 15-3-1968, and thereafter he recorded the remark on 26.3.1969. After retirement Dr. Samantaray was not competent to record any remark in the C.C.R. as a countersigning officer. The adverse remark should therefore be ignored.
9. We hold that there was clear violation of the instructions contained in the Book Circular''s relating to preparation and maintenance of the Character Rolls and communication of the adverse remarks. The administrative instructions in the Book Circulars, particularly those relating to the communication of the adverse remarks, are based upon and are intended to give effect to the principles of fairness and natural justice. It is unfair to a Government servant to deny him any promotion on account of adverse remarks in C.C.R. which were not communicated to him for a long time. The position of law has been discussed at length in S.S.S. Venkat Rao v. State of Orissa ILR 1974 Cutt 227 (F.B.), and
It is obvious that the views of the Public Service Commission were affected by the existence of the adverse remarks in the C.C.R. and the Petitioner has been prejudiced thereby. It follows that the adverse remarks made In the C.C. Rs. of the Petitioner for the years 1964-65 to 1967-68 should not be used or relied upon against him and should be ignored while considering his case for promotion.
10. It was urged on behalf of the opposite parties that the questions now raised were not agitated in the previous writ application in O.J.C. No. 92 of 1969 and hence the decision in that case operates as res judicata We are unable to accede to this contention. As already mentioned the adverse entries in the C.C.R. of 1964-65 and 1966-67 have not yet been communicated to the Petitioner and those in the C.C.R. of 1967-68 were communicated on 16-10-1970, that is, after disposal of the previous writ application. The adverse remark in the C.C.R. of 1965-66 is unsigned and undated and the defect came to light only after production of the original C.C. Rs. in Court. The Petitioner could not therefore have raised the questions regarding defective preparation and maintenance of the C.C.Rs. We accordingly held that the decision in the previous writ application h not barred by res judicata.
11. In the premises aforesaid, the writ application is allowed, but in the circumstances without any order as to costs. Opposite parties 1 and 2 be directed to refer the case of the Petitioner to the Public Commission for re-assessment of his merits and to consider his case for promotion with retrospective effect from the date when his juniors were promoted after ignoring the adverse remarks in the C.C. Rs. for the years 1964-65 to 1967-68. The C.C. Rs. sent by the Government to the Public Service Commission should not contain the adverse remark''s. A writ of mandamus be issued accordingly.
G.K. Misra, C.J.
12. I agree.
