RAMESH PRASAD MAHAPATRA Vs. STATE OF ORISSA THROUGH THE SECRETARY TO GOVERNMENT OF ORISSA, TOURISM AND CULTURAL AFFAIRS DEPARTMENT AND ORS.

JUDGEMENT

(1.) PETITIONER and opposite party No. 3 were initially appointed as Gallery Assistants in the State Museum at Bhubaneswar, Petitioner having been appointed on 19 -4 -1963 and opposite party No. 3 on 21 -6 -1963. The post of Gallery Assistant is borne in Class III Service of the State. Petitioner was promoted to the post of Curator in the Orissa State Museum in Class -II Service on 2 -6 -1964, while Opposite party No. 3 was so promoted on 14 -1 -1965. In the post of Curator, Petitioner was confirmed on 2 -6 -1966 while opposite party No. 3 was so confirmed on 14 -1 -1967. Opposite party No. 3 was promoted as Superintendent of Orissa State Archaeology on ad hoc basis on 1 -4 -1971 and on 7 -10 -1971 that appointment was regularised on the basis of the recommendation of the State Public Service Commission. Petitioner challenged the said appointment by filing a writ application in this Court O.J.C. No. 244 of 1972 contending that the post of Superintendent was promotional, Petitioner was senior to opposite party No. 3 and without any justification his claim had been overlooked. He further contended that certain adverse entries in his Confidential Character Roll bad been relied upon for overlooking his claim though the same bad not been communicated to him by the time such character roll entries were sent to the Public Service Commission and it was further alleged that only on the basis of such character roll entries, Petitioner's claim had been overlooked. Petitioner had by then represented against the adverse entries and the representation was pending consideration. Therefore, a Bench of this Court by order dated 14 -6 -1974, following the ratio in the Full Bench decision in the case of S.S.S. Venkatrao v. State of Orissa and Ors., I.L.R. 1974 Cutt. 227, called upon the State Government to dispose of the representation and directed that if the representation succeeded, Government should review the position and mete out such measure of justice as the Petitioner deserved. The representation of the Petitioner was rejected. Thereupon, Petitioner filed the present writ application for quashing the entries as also the appointment of opposite party No. 3 and to give him appropriate service benefits retrospectively from the date opposite party No. 3 had been promoted. On behalf of the Petitioner it was contended that uncommunicated adverse entries in the Confidential Character Rolls were not available to be utilised and since such entries had been utilised by the Public Service Commission for ignoring the Petitioner's claim the advice given by the Commission was vitiated and Government went wrong in appointing opposite party No. 3 to the promotional post of Superintendent. When the writ application came up for hearing before a Division Bench, counsel for the Petitioner canvassed that the ratio in the earlier Full Bench case of the Court S.S.S. Venkatrao v. State of Orissa and Ors., I.L.R. 1974 Cutt. 227, ran counter to the decision of the Supreme Court and therefore, required review. On 27 -4 -1977, the Division Bench passed the following order:

(2.) THREE questions arise for consideration in this case:

(3.) ON 8 -9 -1971, Petitioner has been allowed to cross the efficiency bar at Rs. 400/ - in his pay scale. According to Mr. Dora for the Petitioner, the decision to permit the Petitioner to cross the efficiency bar must have been reached on the basis of the service records which are intended to reflect Petitioner's performance in service. Once the appropriate authority has considered the Petitioner suitable for crossing the efficiency bar, the adverse entry must be taken to have been wiped out. Since the entry was made on 2 -1 -1971, i.e. eight months prior to the crossing of the efficiency bar, the same must be taken to have lost its existence and after the crossing of the efficiency bar, the entry could not have been utilised against the Petitioner On 7 -10 -1971 the regular appointment of opposite party No. 3 to the post of Superintendent was made which is about a month after the event of crossing of the efficiency bar. The State Government was duty bound to consider the claim of the Petitioner without adverting to the adverse entry which must be deemed to have been already wiped out.